Mof

Memoriesof a

father

� � �

MoF_Fpages_aug04.p65 8/31/2004, 1:13 PM1

Memories

by

Professor T. V. Eachara Varier

Translated from Malayalam by Neelan

Asian Human Rights Commission | Jananeethi

of afather

� � �


Copyright T. V. Eachara Varier 2004

ISBN 962-8314-23-8

Published byAsian Human Rights Commission (AHRC)19th Floor, Go-Up Commercial Building998 Canton Road, Kowloon, Hong Kong, ChinaTel: +(852) 2698 6339Fax: +(852) 2698 6367E-mail: [email protected]: www.ahrchk.net

Published May 2004Revised August 2004

MEMORIES OF A FATHER byProfessor T. V. Eachara Varier

Translated by Edited and adapted for English byNeelan Nick Cheesman

Layout by Cover design bySanjeewa Liyanage & Nick Cheesman Nick Cheesman

Printed byClear-Cut Publishing and Printing Co.B1, 15/F, Fortune Factory Building40 Lee Chung Street, Chai Wan, Hong Kong, China

JananeethiTB Road, Thrissur680 001, Kerala, IndiaTel: +(91) 487 242 7338/ 244 4473Fax: +(91) 487 244 4474E-mail: [email protected]: www.jananeethi.org

ProfeMr. CWarriKeralindepPrajamwith tat St. Chittodied huma

PWaraChan

ASTPTI


About the author

Professor T. V. Eachara Varier was born the son ofMr. Chirangarayil Krishna Varier and Mrs. ThiruvullakkavuWarriath Kochukutyy Warasiar in Chepu, of Trichur district,Kerala, India, on October 28, 1921. He was active in theindependence struggle as a member of the CochinPrajamandalam political party, and later became affiliatedwith the Communist Party. He is a retired language professorat St. Thomas’ College, Ernakulam Maharaja’s College andChittor Government College, Trichur. Since his son Rajandied in police custody, Professor Varier has become a vocalhuman rights advocate.

Professor Varier survives his son Rajan and wife, RadhaWarasiar, together with his two daughters, Rama andChandni.

Address:Sree ViharThekke Madhom RoadPadinjare ChiraTrichur, Kerala, 680 001India

� � �


This humaunforproduset. Aofficeinvestas a wpubli

Ftells ohim tcrueltbut itother

TUnfocommfacedpreferights

PunsucpoliceCampare plto the

Contents

Foreword vii

A plantain leaf and a bowl of rice kept waiting 1

The burden that the mother entrusted 7

Mr. Achutha Menon 10

The odyssey continues 15

Kakkayam Camp 20

When the law of the land is sacrificed 23

A letter from Mr. A. K. Gopalan 27

Mr. Viswanatha Menon and “the matter” 31

An inhuman police officer 34

The Emergency lifted 37

The habeas corpus writ 40

Moves against the case 42

The trial at Coimbatore 48

The case for compensation 54

The Rajan Memorial 57

Remembering the Emergency 60

With malice against none 64

From the translator: It is raining 75

Appendix: The High Court judgment 77


Foreword

This small book contributes far more to the literature onhuman rights than the tons of academic writings thatunfortunately crowd our libraries. Most of those books areproduced in countries quite unlike India, where this story isset. As such, they are relevant to countries where policeofficers generally observe discipline, where most criminalinvestigations are competently managed, where the judiciaryas a whole is uncorrupted, and where politicians are notpublicly perceived as sheer frauds.

From the tears of a father’s pen, Professor Eachara Variertells of another reality. His son’s disappearance draws fromhim this eloquent, moving and remarkable statement oncruelty, courage, and enduring hope. His story is from India,but it is the story of millions throughout Asia, and in manyother parts of the world.

The global human rights community must hear this story.Unfortunately, at this moment in history much of thatcommunity tries to avoid getting too close to the daily realitiesfaced by the overwhelming majority of people in the world,preferring instead to dwell in academic works on humanrights, which also conveniently avoid reality.

Professor Varier describes his desperate and ultimatelyunsuccessful attempts to get his son out of the temporarypolice camp where he is taken one morning for no reason.Camps such as this exist in many countries even now. Theseare places where the rules of life and death are very differentto the rest of the world. They are places where relatively low-

vii

� � �


viii

ranked officers have absolute power to decide who to arrest,how to arrest them, how to torture them, when to kill them,and how to dispose of their dead bodies. Above them areother persons—senior police officers, politicians andbureaucrats—who must hide the truth from the families ofvictims and wider society. A bond of complicity thereby formsbetween the actual perpetrators and other authorities, a bondso strong that in this story it did not break even in cases wherethe father knew many of the government officials personally.

This is not a story of some event from history; it is a storyof today’s India, today’s Asia. Across the region, huge numbersof innocent people suffer the cruelest forms of torture anddeath in custody, and thousands are forcibly disappeared.Most victims do not have a father as educated and vocal asthe boy remembered in this book. His story is also the story ofthe thousands of others whose pain and suffering have neverbeen made public.

In India, human rights abuses by the police are set toincrease dramatically. A body known as the MalimathCommittee has recently suggested reforms to the criminaljustice system that will create conditions even worse than thosedescribed in this book. These reforms, if realised, will removethe basic legal defences available to an accused person. Theywill permit torture, custodial death and disappearance tooccur anywhere, anytime. Proper redress will no longer beavailable through the courts, which will themselves becomeplaces merely for bargaining, rife with corruption.

This is a story for our times. It should be read carefullyby anyone concerned about the real meaning of humanrights. It should be on the reading list of every human rightsand democracy education programme. This father deservesto be heard. We will all be better off if we learn somethingfrom his bitter and deeply moving experiences.

Basil Fernando,Hong Kong,April 2004


1

A plantain leaf and a bowlof rice kept waiting

“Please give this to our son Rajan. I trust only you.”

She didn’t utter a word after that. Cold death had alreadytouched her.

The next day after her death, I had a nap on the couch. Theweight of that packet of coins, which she entrusted to me,

was still in my hands.

March 10, 1976, Manmohan Palace at Trivandrumwas quiet. The atmosphere of the Emergency evenlay upon that historical building, the residence of

the State Home Minister, but there were no khaki-clad menaround.

� � �

MoF_MainFile_aug04.p65 8/31/2004, 1:14 PM1

2

We were not made to wait long to enter the room ofMr. K. Karunakaran, the State Home Minister. It was one ofthe last doors I was knocking at. I was at the residence ofMr. Karunakaran in search of my son, who had been taken bythe police from the front yard of the Calicut RegionalEngineering College hostel. There were two others with me:Surendran, one of my former students, and his friend, aprofessor from Vennala, Ernakulam. This professor was a closefriend of Mr. Karunakaran.

Surendran and I had started early from Calicut andreached Ernakulam before dawn the next morning. We spentthe rest of the time at Ernakulam North railway station, on acement bench, fighting the mosquitoes and the chilly wind,waiting for light. I was burning inside. There at Ernakulam,some three to four kilometers away, my son’s mother and hissisters were still asleep in our house, ignorant of everythingthat was happening.

When the day dawned, we reached the professor’s houseat Vennala and told him of my problems. He immediatelycame along with us. He too seemed to be worried about myson Rajan’s disappearance. He was so close to Mr. Karunakaranthat he had access to even the inner rooms of the Minister’shouse. Mr. Karunakaran’s wife, Mrs. Kallianikutty Amma, wasalso close to him. When we reached Trivandrum, the professorwent straight to the residence of Mr. Karunakaran andarranged an appointment.

Mr. Karunakaran greeted us with a broad smile, but ashe saw me did that smile fade a little? Foolish thoughts, Iconsoled myself.

HI wouhope

“to hav

Iunkn

“the eCalicuColleColle

Ksoft. “That’

Ieyes wPalac

It waswas thEngina proand SLodgMuth


3

He hugged me. “Why didn’t you tell me all this earlier?I would have taken care of it then and there,” he said. Ahope flashed in my mind.

“This name Rajan seems to be familiar to me. He seemsto have got into some serious trouble,” he continued.

I pressed my hands in respect. I was unsteady with anunknown emotion.

“No, he is not capable of doing things like that. Whenthe extremists attacked the police station at Kayanna (nearCalicut) he was participating in the youth festival at FarookeCollege. He was the Arts Club Secretary at the EngineeringCollege where he studied,” I said.

Karunakaran touched my shoulders. His voice was verysoft. “I will enquire and let you know. I will do whatever I can.That’s the relationship we have, isn’t it?”

I paid respect to him once more with folded hands. Myeyes were blurred in the sun at the front yard of ManmohanPalace. Was that fading too, the last island of hope?

� � ��

It was on February 26, 1976 that I last met my son Rajan. Hewas then a final year student of the Chathamangalam RegionalEngineering College, 13 kilometers away from Calicut. I wasa professor at the Hindi department of the Government Artsand Science College at Calicut. I was staying in Kerala BhavanLodge, just opposite to the General Hospital nearMuthalakkulam. Rajan used to come there often to meet

� � �


4

me. He last came for some money. I met him in my room onFebruary 26. I asked him to come home during the vacation.He nodded yes.

I was born at the Thiruvullakkavu Varriam at Cherpu, inTrichur District. After partition of the ancestral property Ileft that home, moved to Ernakulam, and built a house inParambithara road. We named the house ‘Sauhrida Nilayam’[‘house of friendship’]. I was living there with my wife andthree children, my sister, Kochammini Varasyar, and herhusband, Mr. Achutha Varier. He was my wife Radha’s brother.He worked with the Railways.

On March 1, 1976, when I reached my college as usual,I came to know that the police had taken my son into custody.One of Rajan’s friends, Mr. Karmachandran, informed thecollege authorities of this by telephone. It was 10am. Withthe permission of the principal, I rushed to Chathamangalam.

The premises of the Engineering College were as quietas a cemetery. Rajan had been arrested on the morning ofFebruary 29. He was coming out of the college bus in thefront yard of the Engineering College, after returning fromthe youth festival at Farooke College. The police were waitingfor him. According to the information then available, he wasfirst taken to Calicut and then to Kakkayam Camp, a policecamp established to investigate the attack on Kayanna policestation. Many people told me that no purpose would be servedby going to the Kakkayam Camp. But I went.

The camp at Kakkayam was established at the asbestos-roofed building of the State Electricity Board. There was apond in front of the camp. Access was through a temporarywooden bridge, guarded by a police sentry with a rifle. I spoke

to himword me thson Rbut I in fro

I““

I was aand a

Msurfacupriglisten

Wfelt, asomewcamp

Iback tat methe n

After MathrHe w


5

to him. He was very serious, but didn’t utter a single indecentword to me. He went into the camp, and came back to tellme that I would not be permitted inside. He told me that myson Rajan was inside, and was well. My emotion cooled a little,but I told him, “I just want to meet my son.” He was standingin front of me like a mountain.

I felt so lonely that I shouted out; I shouted loudly.“I can do nothing,” He replied. Then his face darkened.“Then allow me to meet Mr. Jayaram Padikkal at least,”

I was adamant. Mr. Jayaram Padikkal was the camp ‘monarch’,and a Deputy Inspector General of the Crime Branch.

My childlike adamancy echoed back from the waterysurface of that pond. I stood still in front of that guard. Hisupright rifle wavered sometimes to the sides. He tried not tolisten, or care for me.

Waiting alone there a sob got trapped in my throat. Ifelt, as though I heard a cry calling me, “Oh, father…” fromsomewhere through the walls of the detention room of thecamp.

I felt tired and started walking back. Once more I turnedback to look at the camp. The policeman was there still staringat me. When he saw me looking at him he turned his eyes tothe nearby hills.

� � ��

After the meeting with Mr. Karunakaran, a reporter of theMathrubhoomi daily called Mr. Sadirikkoya telephoned me.He was one of the dear disciples of Mr. Karunakaran. I had

� � �


6

met him three times to find out the details of my son. “I amat it” was the only reply I got. But this time he gave me a verydifferent version of things. He told me that Rajan had escapedfrom custody while being taken to an extremist’s secret den.

I asked him as to where he got this information.“From reliable sources,” was the reply. The source, I

knew, was Mr. Karunakaran himself. Mr. Sadirikkoya’srevelation gave me some hope. It also brought black cloudsof anxieties. I continued the search.

The principal of the Engineering College, ProfessorVahabudeen, had visited the police camp at Kakkayamtogether with another professor. Mr. Jayaram Padikkal’sbehaviour was very rude with these loving teachers. Thestudents in custody peeped through the windows to see theirprincipal. Rajan was not among them.

I steadfastly believed that Rajan would come back. Ialways asked my wife to keep apart a bowl of rice and a plantainleaf for him. He may step in any time. He may be hungry.There should be rice ready at home for him. Yes, he willcome back. Sure he will…

At night when the dogs barked and made noise for noreason, I woke up and waited at the doorstep… waiting for acall of “father”. Keeping the door open, I went back and felltired into the bed. A sob, “Oh my little child”, got choked inmy throat. But I shouldn’t cry. I shouldn’t allow even ateardrop to roll down my eyes, for there was his mother,Radha, ignorant of all this…

Pthe bof elewhenshowishe wSo weAfter was uStill w


7

The burden that themother entrusted

People used to ask me whether my wife becamementally ill after Rajan’s tragedy. Actually, she hadstarted showing signs of illness fifteen months after

the birth of our first daughter. She recovered with a courseof electrotherapy. She had to be treated seven times. Later,when she was pregnant for the third time, she again startedshowing signs of mental ailment, but doctors told us that sinceshe was pregnant she could not be subjected to treatment.So we resorted to Ayurvedic medicine, and she got better.After the delivery we resumed allopathic treatment, but itwas useless. “She has become shock proof,” said the doctor.Still we continued the treatment.

� � �


8

She was not aware of Rajan’s tragedy. Whenever I cameto Ernakulam from Calicut she used to ask for Rajan. I toldher lie after lie. It made her uncomfortable. She startedloosing faith in me, and behaving oddly with her loved ones.

Of our three children, she was closest to Rajan. One ofthe reasons, I thought, was that Rajan could sing well, as couldshe. Whenever Rajan came back from college, he used tosing for her, and she enjoyed that. He used to sing only whenhis mother demanded. On holidays they used to have concertstill midnight. She always took care to get ready with new songsfor Rajan. That Rajan was our only son was also a reason forher to be more loving to him.

Rajan’s continued absence troubled her, and I had tosuffer as a result. She expected Rajan to be with me wheneverI came from Calicut, and anxiously awaited him. When sheknew that Rajan was not with me a colour of disappointmentwould spread over her face. The depth and darkness ofdistress on her face went on increasing. She stopped talkingto others, and went into a world of silence. Sometimes sheaccused me of not loving Rajan. She confided to relativesand friends that this was the reason I was not bringing Rajanalong when I came. She murmured in secret that I neverloved her or Rajan.

Meanwhile, many of Rajan’s friends got married. Oneday when I reached Ernakulam she asked me, “All of Rajan’sfriends have got married. Are you not a father too? Are younot worried that he is yet to get married?” “Oh, our son isdead,” I felt like telling her then. The sentence got chokedin my throat. At that moment I felt vengeance against herand the world. Regaining the balance of my thoughts, I would

say, “Ithat estare

WRajanWhenbut jukept give twitho

Sother

Ifor foavoid

Oweek my hain hertime?after her aher, b

S“S

coins


9

say, “I am trying to find a suitable girl for Rajan. But it’s notthat easy, you know?” Her response used to be a lone emptystare of disbelief.

Whenever Rajan’s friends came, she used to ask forRajan. Unable to face her, they stopped coming to see her.Whenever I came to Ernakulam, she used to ask for money,but just ten rupees. Then she bought biscuits for Rajan, andkept them safe. Only when the biscuits got rotten did shegive them to other children, who used to throw them awaywithout her seeing.

She also kept small coins safe in a box, which she hatedothers opening. She had no more faith in anyone.

I kept Rajan’s disappearance a secret from my familyfor forty days. Whenever I went to meet Mr. Karunakaran Iavoided them on my return.

On March 3, 2000, Rajan’s mother left me forever. Aweek earlier I had been to see her. As I bid farewell, she heldmy hands, still lying on the bed. There was a painful requestin her eyes, “Will you bring Rajan along when you come nexttime?” I couldn’t look at her face. The guilt of telling her lieafter lie had haunted me for years. Five days later I went toher again. Death was playing hide and seek somewhere nearher, but she remembered everything.

She called me, “Will you do one thing for me?”“Sure,” I answered.She gave a small packet of coins to me. Those were the

coins she saved in that box.

� � �


10

Mr. Achutha Menon

Now I am going to write about Mr. C. Achutha Menonand his role in this tragedy. The reputedly highrespect held for Mr. Menon among Malayalis should

not be shattered by what I am going to say. That’s not myintention at all. Especially as he is no longer alive, myutterances shouldn’t exaggerate, even by a word. But I cannothide what he did along the way, in my quest to find out whymy son died. Only if I record his role can I be truthful tothese notes. So I request all admirers and dear ones ofMr. Menon to pardon the sour memoirs of this old man.

The famous Thiruvullakkavu temple is situated10 kilometres away from Trichur, on the way to Irinjalakuda.My ancestral home was in front of this temple. On the easternside of the temple was the house of my brother, Soolapani

Varierupperwas ve

OmidnMenothougthe dPartymovecomrahe sh

“policshelte

IAchuthe pshockbe domovethe p

MK. V. Rfor thlight itold tMr. MPudureach


11

Varier. He was a well-known Gandhian. I used to sleep in theupper verandah of my ancestral house. Mr. Achutha Menonwas very familiar with these places.

One night in March 1949 somebody woke me up atmidnight. When I opened my eyes there was Mr. AchuthaMenon, tired, and in shabby clothes. He looked baffled. Ithought somebody else would be there with him. Those werethe days of The Ranadive Thesis in the Indian CommunistParty, and the party was vibrant with the rhythm andmovements of the period. Mr. Menon, like many othercomrades, was in hiding. According to the underground rules,he shouldn’t travel without an escort.

“I am coming from Anthikkadu, running away from thepolice. They are after me. Somehow you must find meshelter,” he said.

I was surprised and scared to see the usually stubbornAchutha Menon looking baffled. If he was caught, I was sure,the policemen would kill him. Manhunts by the police wereshocking the whole village those days. I thought of what couldbe done in the circumstances. I was close to the communistmovement, and decided not to let Mr. Menon be caught bythe police.

My younger brother, Madhavan Varier, and my nephew,K. V. Raman Varier, were there at home. They were preparingfor the Secondary School final exam, and there used to belight in their room till very late at night. I called the boys andtold them about the seriousness of the situation, then sentMr. Menon with them to the village of Palazhi, nearPudukkad. That village was far away from Thiruvullakavu. Toreach there they had to cross Vallachira village, which was

� � �


12

under police surveillance. There were police jeeps goinghere and there around the village at night. There werepolicemen in every nook and corner.

I couldn’t sleep until the boys returned after takingMr. Menon to the shelter at Palazhi. I was burning, thinkingof the consequences if the police caught Mr. Menon and theboys…

Madhavan and Raman became close associates ofMr. Menon after that incident. Madhavan even became amessenger for Mr. Menon’s wife, Ammini Amma, who wasstaying at Kodungallor, near Trichur. We gave shelter toMr. Menon at the house of my elder brother. Him being aGandhian, nobody suspected him of giving shelter to theunderground communists.

� � ��

I informed my family of Rajan’s disappearance after forty days.Until then, I was not bold enough to face the emotionalexplosion that the news would create within the family.Moreover, I hoped that Rajan would come back, though thishope defied reality.

After meeting Mr. Karunakaran at Trivandrum, I cameback to Calicut and remained disappointed and disillusioned.I was living through these days in memories and dreams, notfeeling time wash away. Whenever I felt like meeting my wifeI went to Ernakulam, but I was not bold enough to tell her

the trand tof wh

Mpromlaw ofhim. hand and rfromdisap

MMr. Vto Oobroththe dMenoMr. Afirst m“Rajanthe hbut hMadhby som

Isure tthan tstoodafter


13

the truth. I secretly called up my younger brother Madhavan,and told him all that had happened. Together we thoughtof what could be done next.

Mr. R. V. Ramankutty Varier, a cousin of ours, was aprominent Communist Party leader. He was the brother-in-law of our elder brother. My brothers together went to meethim. “I will give you a letter for Mr. Achutha Menon. Pleasehand the letter to him,” he suggested. Madhavan got angryand replied that they didn’t need a recommendation letterfrom him to meet Mr. Menon, and came back verydisappointed.

Meanwhile, a close associate of Mr. Achutha Menon,Mr. Veliath Balan (better known as V. B. Menon) came backto Oorakam, near Trichur, after a long time in Mumbai. Mybrother Madhavan met him, and he came to me to find outthe details of Rajan’s case before going to meet Mr. AchuthaMenon. They left for Trivandrum the same day, and metMr. Achutha Menon at the Assembly hall there. That was thefirst meeting my people had with Mr. Menon on this matter.“Rajan is in hiding” was the reply they got from Mr. Menon,the humane communist. Madhavan tried to argue with him,but he stood firm in his opinion. After returning, whenMadhavan met me there were tears in his eyes. This treatmentby someone whom he had considered an idealist pained him.

I became convinced that the search would never end,sure that a father’s journey in search of his son is more tiringthan the journey of a son in search of his father. Many friendsstood wholeheartedly by me, but I was getting lonelier dayafter day. I walked up the empty inner rooms of my memory,

� � �


14

calling for Rajan. I entered into an eternal search, suffocatingthough it was. With hands pressed together I went toMr. Achutha Menon, the Chief Minister, so many timesthereafter.

Asearchchildr

IThe MTrichof Chknew next Kochexprewe wbecau


15

The odyssey continues

After my brother working in the railways wastransferred from Tamil Nadu to Ernakulam I wasfree from domestic worries and could go on in

search of Rajan. My brother and his wife had no children; mychildren were theirs, then and now.

I continued my search with the help of Mr. M. S. Master.The Master family was a well-known communist family inTrichur district. Mr. M. S. Master was the retired headmasterof Cherpu high school and a great help to all the locals. Heknew Mr. Achutha Menon well. He came to my home for thenext trip to Trivandrum to meet Mr. Menon. My sisterKochammini had great faith in Mr. Menon and she alwaysexpressed it through her words and deeds. She hoped thatwe would get some information about Rajan, especiallybecause Mr. M. S. Master was with us. When we left for

� � �


16

Trivandrum, she handed a small packet to him, saying, “Thisis an offering from the Hanuman temple at Ernakulam. Giveit to Rajan. Tell him his aunt has given it for him.”

We met Mr. Achutha Menon at Cantonment House, theofficial residence of the Chief Minister at Trivandrum. Heknew the purpose our visit, and promised to do whateverpossible. Then he told us of the problems he was facing asChief Minister and about the pressure tactics of the CentralGovernment. He looked unhappy. He asked us to come againnext week. Before we left I humbly requested him to get thefacts about Rajan from Mr. Jayaram Padikkal. I was sure thathe alone would be able to give the details.

“No, I will not enquire with Mr. Padikkal. I will speak tothe Inspector General, Mr. Rajan,” was his reply. Everyone inKerala knew that Inspector General Rajan’s role in theEmergency playground was superficial. Mr. Jayaram Padikkalwas the one abusing the state system of law and order in thosedays. Mr. Menon’s reply irritated me. I could not think of aChief Minister like Mr. Menon saying that he could not getsome information from a lower officer. It was not distaste butpain that I felt within me.

The next week we went to Trivandrum again. We knewthat Mr. C. Janardanan, Member of Parliament, was stayingat the Trivandrum Hotel, near the secretariat. Thisinformation made us happy, because Mr. Janardanan was aclose friend of mine and like others, I had faith in him.

During the election campaign in 1951 Mr. JawaharlalNehru, then Prime Minister of India, had come to Trichurand addressed a public meeting at Thekkikadu Maidan. Thenext day, Mr. Janardanan addressed the public in a meeting

held awas enow. speakatrocdistricwas sh

WRajanus to He cathrou

IrepeaPadik

I“

his rMr. KTrivan

Dsituatmentatook cantici“Eachtears

Wmy easince


17

held at the same ground, as a reply to Mr. Nehru. That speechwas electrifying to many, including me. I remember it evennow. After that I had gone eagerly to hear Mr. Janardananspeak. But his beautiful voice got distorted due to policeatrocities committed on him. Few communists in Trichurdistrict suffered from police atrocities like him. Sadly, his lifewas shortened by many years as a result.

When we met Mr. Janardanan and informed him aboutRajan he told us that he was unaware of the case. He askedus to wait for a while and went to meet Mr. Achutha Menon.He came back around 1pm, and gave us a telephone numberthrough which to contact Mr. Menon the next day.

I called up Mr. Menon with great expectation, but herepeated his old stand: “I will not speak to Mr. JayaramPadikkal.”

I requested him to enquire with Mr. Karunakaran.“I will not speak to him either. He will simply bluff,” was

his reply. Then he asked Mr. M. S. Master to bringMr. K. K. Master together to Trivandrum. Our next trip toTrivandrum was with Mr. K. K. Master.

Days were passing by. Winter gave way to monsoon. Thesituation at home was getting worse. My wife had become amental wreck. My sister and her husband, Mr. Achutha Varier,took care of her. Achutha put his hands on my shoulders andanticipating our meeting with Mr. Achutha Menon said,“Eachara, you have to face him; he will take it.” There weretears in his eyes.

We were silent on the train. His voice reverberated inmy ears with the echoing sound of the wheels. It was monthssince I began this journey in search of my son. I became weak

� � �


18

inside. My thoughts started going wild, but I still had hope inMr. Menon. That face in the darkness of the night, with longhair and beard, was still clear in my mind. During those daysof police atrocities in our village, the flame of mercy in thoseeyes had given a lot of strength to struggling and sufferingpeople. I dreamed that the little fire in his heart kindled bythe poorest of the poor in Kerala would never go out, despiteall sorts of political arrangements.

We reached Trivandrum in the early morning and calledMr. Menon on the telephone with the number thatMr. Janardanan gave us. Nobody attended to the phone for awhile. I waited for Mr. Menon’s voice. Finally he came online, and Mr. M. S. Master talked to him.

“As you asked us last time we have broughtMr. K. K. Master along with us. Shall we come to you now?”he asked.

“I don’t want to see K. K. or any damn ****!” was hisreply. I never learnt what words he used exactly.

He got angry. “Do you expect me to wander around thepolice stations in the state in search of your son?” was hisfurther response.

I felt angered and wanted to cry, but without fumblingI took the phone and said, “I never understood that a ChiefMinister had only such limited power as to be unable to findout something from the bureaucrats lower down the order.If I had known this I would never have come to you.”

We returned from Trivandrum with pain. I found thechange that power had brought into the character of acommunist leader strange and incomprehensible. TheMr. Menon who had moved around the state to build up the

Commable tlike hpeopldress from

WCommhad lreachsafely

Thad nYet noservanrespoMr. Mr. KMr. A

Ibut thme, an


19

Communist Party was dear to me. Nobody today would beable to fathom the faith our generation entrusted in peoplelike him. Mr. Menon was in the hearts of ordinary ignorantpeople by having strayed into their huts at night, with shabbydress and a tired face. These poor people protected himfrom police atrocities at risk to their own lives.

When I told all that had happened to a friend from theCommunist Party, he replied sarcastically that if Mr. Menonhad left the chair of the Chief Minister he would not havereached home safely. “The poor people of Kerala took himsafely home for many years,” I replied to him.

The Mr. Achutha Menon I was familiar with would havehad no need for someone who would only misinform him.Yet now we all felt sorry for that bold communist, virtually aservant of a lesser person like Mr. Karunakaran. Mr. Menon’sresponse to Rajan’s case pained me much more than that ofMr. Karunakaran. I expected nothing more fromMr. Karunakaran, but never expected anything like it fromMr. Achutha Menon, not even in my wildest dreams.

I know this note on Mr. Menon will pain a lot of people,but the pain I underwent was much more. Please excuseme, and understand that I am just trying to do justice to history.

� � �


20

Kakkayam Camp

Recently Mr. Karunakaran made a tall claim that thereare no more extremist movements in Kerala becauseof his governing tactics. I feel that the Kayanna police

station attack by the Maoist extremists, and the resultant policeaction, was what made Mr. Karunakaran make such a claim.

On February 28, 1976, a group of people attacked thepolice station at Kayanna and took away a gun. The authoritiessimply assumed that this was a Maoist-Naxalite action. Toenquire into this police station attack, the police set up thecamp at Kakkayam, in that shed on the hill by the pond. Afterthe police station attack, from February 29, police startedhunting youngsters from nearby places like Kayanna,Koorachundu and Kakkayam. They were taken to the campand brutally tortured. Police brought people in vans to thecamp day in and day out over many days.

Mthe capolicemodemodewas thfreely

OEngin‘D Zoheld that ythe nattackCollenabbe

TwhereAll thColleone owho wparticthey s

Idescrcampwent heartsense


21

Mr. Jayaram Padikkal was in charge of the enquiry, andthe camp. This Deputy Inspector General of the crime branchpolice had had training at Scotland Yard in England, but themode of enquiry used at Kakkayam never involved anymodern or scientific methods for detecting crimes. Torturewas the only method the police there knew, and they used itfreely.

On March 1 the police went to the ChathamangalamEngineering College to arrest the so-called culprits. The‘D Zone’ youth festival of the Calicut University had beenheld at Farooke College. Rajan was an active participant atthat youth festival, and was in Farooke College all throughthe night on February 28, when the Kayanna police stationattack had occurred. He came back to the EngineeringCollege hostel early the next morning, and was immediatelynabbed by the police.

The police could easily have checked Rajan’swhereabouts on February 28 by enquiring at Farooke College.All the students and teachers who came back from FarookeCollege were witnesses to this. But the police didn’t ask anyone of them. They were not truly interested in finding outwho was behind the police station attack and how many hadparticipated. Without complying with any legal formalitiesthey simply took Rajan first to Calicut and then to Kakkayam.

I don’t know whether I will be strong enough todescribe the torture that my son underwent at the Kakkayamcamp. Like the torture at Hitler’s concentration camps, whatwent on at Kakkayam was an experiment, undemocratic andheartless, to find out whether the intellectual honesty andsense of justice of a generation could be destroyed by the

� � �


22

power of an iron fist. How much Mr. Jayaram Padikkalsucceeded in this experiment is something for history toevaluate.

My words might get caught in a storm of emotions andsweep on the reader. I remember Rajan as the kid who heldmy fingers and toddled, innocently calling “father, father”.He still is a kid to me. Hence my evaluation of what happenedto him might sound partial. Please do not take it as theimpropriety of a father who lost his son. I see generationslowering their heads in shame when they hear of Kakkayamcamp. I believe that forever there will be a flower born oftears in the highflying flag of democratic Kerala. Though Ihave spoken of it often, I cannot but go on talking aboutKakkayam camp till my last breath. Even when I go senile inold age I will still be talking about it.

I wtju

even fatheinnocenquior the

WIs it bnobosomeimpriused to he


23

When the law of the landis sacrificed

I want to deal with the judicial system of India as I go ontalking about my son. The sane old dictum of the Indianjudiciary is that even if thousands of culprits escape, not

even a single innocent person should be punished. Thefathers of our judicial system were that particular that noinnocent person should be punished wrongly. But today ourenquiry officers never care a damn whether the real culpritsor the innocent are the ones punished.

What is it that we call punishment? Is it imprisonment?Is it being tortured in police camps like Kakkayam? Althoughnobody has thought aloud about this, it has disturbed me forsome time now. Lock-up torture cannot be compared toimprisonment, whether simple or rigorous. We are by nowused to news of deaths due to lock-up torture, and continueto hear of such deaths, yet they are not called ‘punishment’.

� � �


24

Meanwhile, the real culprits often escape punishment. Whenthings are looked at from this angle, it is not difficult toconclude that the sublime dictum of the Indian judiciary,not to punish the innocent, is being violated blatantly.

So it was in Rajan’s case. There was never even anattempt to find out if he was a real culprit or not. They justtook him, tortured him and killed him. That was all thathappened. Somebody gave the police a list and they pickedup people from that list. Whether somebody was a culprit ornot was irrelevant to those police. None among these policeofficers were anxious about the future of a young man intheir custody.

Although trained to use scientific methods in findingreal culprits, none of the police employed them. They foundit easier to torture the accused. With such an easy way, whyresort to scientific methods? This is why I believe that thepolice are only instruments of torture for the state.

When after four days the principal of the EngineeringCollege, Professor Vahabudeen, had no information aboutthe arrested students, he went to the camp at Kakkayamtogether with a Professor George. Going to the police camprun by Mr. Jayaram Padikkal in those days was like going to alion’s den. But they decided to go because they loved theirstudents. I don’t know what words of praise can express mygratitude to these saintly souls. When Mr. Padikkal wasinformed of their arrival, he arrogantly instructed that, “Iwill meet the principal, but not the other professor.” Rajanwas dear to the teachers and other students at the Engineering

He tocontin

TProfemechunclein hisBrancpolicenicelyThey thingby theread ta polito knwere I did lodge

AViswaGoverof thecollegweek shouthreato prsituatCollege, and was a favorite student of Professor Vahabudeen.


25

He took keen interest in his case throughout, and stillcontinues to do so.

Throughout his college days, Rajan was staying withProfessor Mohan Kumar and family. He was a professor ofmechanical engineering and the brother-in-law of Rajan’suncle. During my wanderings in search of Rajan, I had stayedin his house for two or three days. One afternoon, CrimeBranch Circle Inspector Mr. Sreedharan, along with two otherpolicemen, came there asking for me. They behaved verynicely, expressing sorrow over the disappearance of my son.They gave me a lot of advice too, among which I found onething particularly interesting. They advised me to read a bookby the extremist leader Mr. K. Venu. Actually, I had alreadyread the book, but as I was not interested in discussing it witha police officer I pretended ignorance. Only later did I cometo know that everybody in the house, except me of course,were ice cold, scared of the police presence. The first thingI did the next morning was to pack up and move over to alodge.

Another incident involving a friend of mine, ProfessorViswambharan, head of the Department of Hindi in theGovernment Arts and Science College, exposed another sideof the police culture. He was staying with his wife near thecollege. I also stayed with this couple for a few days. The nextweek Circle Inspector Sreedharan met them one night andshouted, “Where is your friend, that professor?” Hethreatened them in typical police style. The police were tryingto prove that I too was an extremist. Unfamiliar with suchsituations, Professor Viswambharan and his wife panicked.

� � �


26

They didn’t sleep that night, thinking that a great calamityawaited me. When I came to know of this I tried to consolethem. The police behaviour was unpredictable.

I tried to contact Circle Inspector Sreedharan, but failed.I realised later that Mr. Sreedharan came to meet me knowingthat Rajan was dead. I shudder to think what sadistic pleasurethese people had by treating a feeble old man in that way.

Amy recameMr. Kdaily. but soin. WstronEmer

Idifferto reaasked


27

A letter fromMr. A. K. Gopalan

Apart from my experiences with political leaders andpolice officers, I had another very differentexperience. When I was staying in Kerala Lodge, after

my return from Chathamangalam to Calicut, an invitationcame to me from an unexpected corner. It was fromMr. K. P. Kesava Menon, Chief Editor of the Mathrubhoomidaily. I had never approached him regarding Rajan’s case,but somehow he was aware of the problems I was entangledin. When I met him, I came to know that he had a clear andstrong stand against the atrocities committed during theEmergency.

I gave him copies of memoranda I had submitted todifferent authorities. Due to fading eyesight he didn’t careto read them, but said he would go through them later. Heasked me the details of what was happening at Kakkayam

� � �


28

and Kayanna. When I told him how Mr. Jayaram Padikkaltreated Professor Vahabudeen his face darkened. He wasclearly sad about the country’s moral degradation. Hepromised to do whatever possible, and I arranged to meethim again the following week.

This experience with him, different from others, mademe happy. When I met him later, he had no new informationto give to me, but his words were consoling. The simpleinterest he took in my case was more than enough for a fatherlike me. “Let me try once more; give me another chance,”he said, as if it was a request. I agreed and went to him afteranother week. He looked very sad. He had failed to doanything in spite of his best efforts, and was disappointed.“Stop enquiring around the place like this. Go back toErnakulam and take a rest. If fortunate, we will meet again,”he said.

Mr. K. P. Kesava Menon couldn’t help with Rajan’s case,but the interest he showed consoled me. Two to three dayslater there appeared an editorial written by him in theMathrubhoomi daily. Defying the censorship that prevailedduring the Emergency, he revealed a lot about things goingon during those days. I felt that he wrote the editorial basedon my experiences. I still remember the last sentence:“During these days of Emergency many people are sufferinga lot, but none dare to complain to the authorities. Only afew, left with little alternative, are bold enough to do that.”Indeed, by this time I had gained the inner strength topetition everyone from the President of India to the lowestpolice officer.

ICalicuatmoshad ahope witho

Itorturso it iotherconceIn myInspeabougoverout.

Ounderthrouchild.my boto conme. Msheetand oWherdisapp

Owas thThe f


29

I concluded my enquiries at Chathamangalam andCalicut, returned to Ernakulam, and stayed at my house. Theatmosphere of deep woe at home was horrible. They all stillhad a faint hope that I would come back with Rajan, but thathope too vanished with my return. I was scared to go backwithout him.

In India, the police pick up people, and some die fromtorture while in the lock-up. This is common in our country,so it is reasonable to ask why Rajan’s case was special. In allother cases during the Emergency, information about theconcerned person was made available to his or her parents.In my son’s case no one, from the Chief Minister to the CircleInspector at Kayanna, was ready to give me any informationabout Rajan. Only when a court later ordered thegovernment to present Rajan before it did the truth comeout.

Only those who have gone through such miseryunderstand the agony of parents who must drag themselvesthrough life without getting information about a missingchild. For me it was like a pin being constantly inserted intomy body. If I thought of my son while eating I found it difficultto continue. When I slept memories of him would surroundme. My inner self was always writhing, as if on a red-hot tinsheet. All my dear ones blamed me for not finding Rajan,and our home became a disturbing place in his absence.Whereas students had used to visit, after Rajan’sdisappearance a sullen silence always surrounded that house.

Outside home, people started to avoid me. For them Iwas the father of an extremist. I was scared to talk to people.The fear of what they would think was always there. I often

� � �


30

felt that I was a character in a story by the great Indian writerPremchand. I imagined myself as the freedom fighter in hisshort story, “The Examination”, because people had startedto reject me so much.

It was then that I received a letter from comradeA. K. Gopalan. It was like moonlight breaking the darknessin my home. He informed me that he had forwarded mymemorandum to the Prime Minister Mrs. Indira Gandhi, andhad strongly demanded steps to trace Rajan. I had sentpetitions to many, but none cared to respond. ThatMr. A. K. Gopalan, then the leader of the opposition, hadtaken up the case was a solace to me. All the family felt happy.Mr. A. K. Gopalan dedicated his life to suffering people. Sadly,he couldn’t help me much because he passed away after awhile. That I couldn’t meet and thank Mr. A. K. Gopalanbefore he died still pains me. O

wantemeet that aRajanan enRajanthe LMukhMenoboth kept i


31

Mr. Viswanatha Menonand “the matter”

One of my friends came one day to tell me thatMr. Viswanatha Menon, then a Member ofParliament in the Rajya Sabha [Lower House],

wanted to meet me. Then and there I went to his home tomeet him, although I had not known him before. I learntthat after receiving a petition from me he had presentedRajan’s case in the Rajya Sabha and had strongly demandedan enquiry into his disappearance. He received a reply thatRajan was not in police custody. He then raised this issue inthe Lok Sabha [Upper House] through Mr. SamarMukharjee, and received the same reply. Mr. ViswanathaMenon gave me a concise version of the discussion held inboth Houses of Parliament. After this meeting I constantlykept in touch with him.

� � �


32

I had copies of petitions that I had submitted to thePresident, Vice President, Prime Minister, and all Membersof Parliament, but except for Mr. A. K. Gopalan, Mr. PatyamRajan, and Mr. Viswanatha Menon none responded. Otherssaid that they didn’t receive copies, as if the postal departmentwas more considerate towards Mr. Gopalan, Mr. Rajan andMr. Menon. Some of these ‘representatives of the people’were my close friends, including Mr. Janarardhanan andMr. Vayalar Ravi from Trichur. But many were not even readyto admit that they received copies of my petitions. Readerscan decide for themselves how suited these persons were tobe people’s representatives.

Mr. Viswanatha Menon went to Delhi several times onthis matter alone. He sent copies of my petitions to the HomeMinister Karunakaran, but received no response. Once hehappened to be on the same flight as Mr. Karunakaran, andtold him, “Are we not the representatives of the people? Weshould get replies to whatever issues we bring to your notice.”

“I always reply to all letters I receive,” claimedMr. Karunakaran.

Then Mr. Menon reminded him of my petitions. “I don’tremember having received one like that,” was his reply.

Later Mr. Menon sent one of my petitions to Mr.Karunakaran, with a covering letter: “Received the letterfrom Mr. Eachara Varier informing of his son being missingafter the police took him into custody, and requesting fordetails about his whereabouts. Is the matter beingconsidered?”

Thabeamatte“the mKumawas g


33

This letter and its content caused a furore when myhabeas corpus petition was heard, especially the words “thematter”. There was great argument in the court as to what“the matter” meant. In the Supreme Court, Advocate RamKumar interpreted these words for the judges, and therewas great argument there also.

� � �


34

An inhuman policeofficer

Many police officers have questioned me on thepetitions I sent to the President and PrimeMinister. During this time, Mr. Balakrisna Pillai,

an Ernakulam district Police Superintendent, summoned me.I went to meet him with my younger brother,Mr. Krishnankutty Varier, who was working in the AttorneyGeneral’s office. We introduced ourselves, then he asked mybrother to leave us alone.

Mr. Pillai continued, “I will get your son released. Butwhat’s your future plan for him?” This question confused me.I could not understand his real intention in asking it.

“I want him to complete his studies,” I said, embarrassed.“No, don’t do that,” was his reply, which embarrassed

me more. I was totally confused as to what he meant.

Tbe in be anwork the ua lot osure tfree upropo

“under

Anow gwas rewouldgave mfor m

TThe pit wasexperagreehave In facwhichPresidinstrunaturthis towas n


35

Then he said quite dramatically, “Let Rajan continue tobe in the Naxalite [armed communist] movement. Let himbe an informer for us.” What he meant was that Rajan shouldwork as a police agent. I got terribly baffled. At that moment,the urge to see Rajan grew strong in me. I was entangled ina lot of disturbing memories, but I regained my control. I wassure that Rajan would be much safer in police custody thanfree under such a condition. The lack of ethics in thisproposal also disturbed me.

“Let Rajan stay in your custody. I don’t want him releasedunder this condition,” I said.

At this point the officer changed his stance: “You maynow go please. I will get Rajan freed within fifteen days.” Iwas relieved to hear this, not because I believed that Rajanwould be released as the officer said, but because his wordsgave me an assurance that Rajan was alive. That was a relieffor me.

This police officer knew that Rajan was not an extremist.The police had nothing to connect him with the extremists,it was just the style and method of their enquiries. This is theexperience I had from a top-level enquiring officer. If I hadagreed to his condition for Rajan’s release, what would hehave done? From where would he have got Rajan released?In fact, this officer had only one document with him withwhich he started his enquiry, and that was my petition to thePresident. If this was the way an enquiry was done as per theinstructions of the President of India, what would be thenature of other lesser enquiries? Could it be believed thatthis top-level police officer was ignorant of the fact that Rajanwas not alive? Why did he try to play tricks like this? That still

� � �


36

remains an enigma to me, and one of many. I met this officermany times in Ernakulam after that. He always ignored me.He never had the courage to face me.

I had to contact so many police officers from top tobottom after Rajan’s arrest, and can state truthfully that nota single one wanted to be honest regarding his enquiry.

I was destined to continue the search for my son, but asit went on it became more painful and sour. Still I hopedthat my son would be alive in police custody, despite my beliefotherwise. But cutting across these hopes, Rajan’s absenceremained a painful truth. I dreamed of him many a night. Iremembered his childhood and youthful days more thanever. I found solace in these memories whenever I feltdisturbed. Rajan’s mother had become a total mental wreckby this time. His sisters were almost always in tears. I had somecassettes of his songs, and I listened to them with the help ofa cheap cassette player. He communicated with me throughthese sad songs. Very often my tearful prayer to God was tonot take this voice away from me.

Tnot oexpretalk aGandfoundpersoscare

TattemBut thsocialstarte


37

The Emergency lifted

The Emergency deeply affected social life in Kerala.Even those who supported the Emergency stronglyfelt the absence of freedom. There was censorship

not only of the newspapers but also limits on freedom ofexpression among the people, who were scared to meet andtalk among themselves, scared to criticize either Mrs. IndiraGandhi or Mr. Karunakaran. Some heartless Congressmenfound sadistic pleasure in getting leftists and their ownpersonal enemies tortured by the police. Even officials werescared.

The Emergency was lifted on February 22, 1977. Myattempts to find out about Rajan had slowed down by then.But the lifting of the Emergency made a lot of difference tosocial movements in Kerala. The cool breeze of freedomstarted sweeping through the land again. Those who had

� � �


38

suffered torture and humiliation at the hands of the autocracyheaved a sigh of relief. There were celebrations andprocessions proclaiming liberation.

Political and constitutional changes made me activeagain. I consulted Advocate Ram Kumar and Mr. ViswanathaMenon on a future plan of action. Mr. Ram Kumar thoughtthat I should approach the High Court with a habeas corpuspetition. He was very particular that it should be the first writafter the Emergency was lifted. Without pondering muchwe approached Advocate Mr. Eeswara Iyer, one of the mosteminent advocates of all time in Kerala. When we went tohim, he behaved as if expecting us. Without wasting time wegot into preparation of the writ. According to the rules, theaffidavits of a number of witnesses also had to be submitted.I was entrusted with getting these affidavits.

The witnesses helpful to us were available only at theEngineering College and in surrounding regions. As per theinstructions of Mr. Eeswara Iyer I went to Calicut and metMr. Keluvettan, district committee secretary of theCommunist Party of India (Marxist). He was waiting for me,and did his best to help when I approached him with myanxieties. He sent me to the secretary of a cooperative societyat Chathamangalam. I went with him to the EngineeringCollege, and there found some ten students who werewitnesses to Rajan’s arrest, and some others who were withRajan at the Kakkayam camp. I contacted the principal,Mr. Vahabudeen, and he also agreed to send an affidavit toMr. Eeswara Iyer expressing his willingness to be a witness inthe case.

TarresKakkaKunjiAdvocjob wand pwork.witneI starand MbecauofficeaffidanothMr. E


39

Then I contacted Mr. Chathamangalam Rajan, who wasarrested along with Rajan and brutally tortured at theKakkayam camp. I took him and the ten students to AdvocateKunjirama Poduval at Calicut, as per the instruction ofAdvocate Ram Kumar. He was waiting for us there. His firstjob was to record the statements of these eleven witnessesand prepare an affidavit. It was 10pm when we finished thatwork. After that all the documents had to be typed, and thewitnesses sign them. It was early morning when we finished.I started for Ernakulam on the first train. Mr. Ram Kumarand Mr. Eeswara Iyer were worried until I reached them,because they knew that if Mr. Karunakaran or any policeofficer were aware that we were getting ready with theaffidavits they would surely try to stop us by all means. Anyway,nothing happened. I handed over the affidavits toMr. Eeswara Iyer.

� � �


40

The habeas corpus writ

So the first writ filed at the High Court after theEmergency was lifted was Professor Eachara Varier v.the Government of Kerala. Advocate Ram Kumar

played the major role. It was filed on February 25, 1977. Thenext day all the major newspapers in Kerala, and also outsidethe state, carried details of the writ. The news spread throughKerala like wild fire. There was such a huge crowd in theHigh Court on the day the writ was considered. Because ofthis crowd, the case was shifted to the most spacious hall inthe High Court. Rajan’s case was being felt among the people.

The Kerala State Assembly was boiling over after the heatof the Emergency. On February 26, one member raisedRajan’s case in the Assembly. Mr. Karunakaran jumped upfrom his seat and declared that Rajan had not even beenarrested. Marxist leader Mr. T. K. Ramakrishnan passed thisinformation to Mr. Eeswara Iyer then and there. He in turn

sent fincluAccorthe w

UKnowthe Ras preFounindusperso

Mfinanfloodwas thNoboAfter decidEmerpress conta

Wwere areas we leEmerMr. Ksuffetypewanym


41

sent for Mr. Ram Kumar and me, and suggested that we mustinclude Mr. Karunakaran in the list of the accused.Accordingly Mr. Eeswara Iyer and Mr. Ram Kumar redraftedthe writ, and submitted it to the court the next day.

Up to then I had managed the case virtually on my own.Knowing this, some of my friends joined together to formthe Rajan Case Aid Committee, with Professor Manmadhanas president, Mr. Ramachandran Potty of the Gandhi PeaceFoundation as convener, and Mr. P. C. Abraham, theindustrialist, as treasurer. Senior advocates and politicalpersonalities were among the members.

Mr. P. C. Abraham issued a press statement requestingfinancial help from the general public. Money orders startedflooding into his house as if it was an historical event. Thiswas the only request made by the treasurer to the public.Nobody approached anyone personally for any financial help.After the case, a lot of money was left over. The committeedecided to utilize it to help victims of torture from theEmergency suffering the aftereffects. The treasurer issued apress statement to that effect, requesting such persons tocontact the committee.

We received a lot of applications, and deserving peoplewere given aid. Most approaching the committee came fromareas like Chathamangalam, Kayanna and Karachundu. Whenwe learnt of their suffering, the horrible scenario of theEmergency became clearer. Many of them, includingMr. Koru from the Engineering College hostel, were stillsuffering. Mr. Chathamangalam Rajan, a teacher in atypewriting institute, became so sick that he couldn’t workanymore. All this scared me more and more.

� � �


42

Moves against the case

As Rajan’s case continued, it was discussed widely,becoming a focal point for those struggling after theEmergency. As the case progressed, those who had

supported the Emergency became more and more scared.The case was going against their expectations, so they startedmaking moves against it. The Malayala Manorama newspapersupported them.

Four days after the case was filed, Malayala Manoramapublished a slanderous editorial against Rajan. It pained meso much that I wrote a reply, but it was not published. Idecided that I had to put the record straight, and the nextday another newspaper, Desabhimani, carried my reply.

Tplan owere mastein the

Tin Ercartoothe hme antwo dhatedarticleIyer. Hwouldhim, said iand dwith M

TpolitiCommon thnewsp

Wneverparty;The wI have


43

Those persons embarrassed by Rajan’s case went on toplan other ways to scuttle it. I am sorry to say that their methodswere unethical and immoral. All the more so, given that themasterminds were prominent political and social personalitiesin the state.

There was a satirical magazine titled Asadhu publishedin Ernakulam those days. Mr. Jesudas, one of the foremostcartoonists in Kerala, was its editor, and the day after news ofthe habeas corpus writ broke, he wrote an article praisingme and criticising those who tortured Rajan. But after anothertwo days he wrote a slanderous article to the effect that Rajanhated me because of some alleged immoral activities. Thisarticle pained me deeply, and I took it to Advocate EeswaraIyer. He too had read it, and was waiting for me, sure that Iwould reach him once I saw the article. I cried in front ofhim, and asked him to take this case also to the court. Hesaid it would not serve any purpose to do so. Unconvincedand disappointed I went to Advocate Ram Kumar. He agreedwith Mr. Eeswara Iyer, and consoled me. I left him silently.

Two newspapers of the time owned by two prominentpolitical parties—the Congress mouthpiece Veekshanam andCommunist Party of India’s Janayugam—reprinted the articleon their editorial pages. I never thought that prominentnewspapers could lower their moral standards to that extent.

What surprised me most was Mr. Jesudas’ attitude. Inever thought him to be the spokesperson of any politicalparty; nor did I think he could discredit himself so much.The way he changed his attitude within two days was amazing.I have no complaint about him not revealing the source of

� � �


44

his information, but he should have revealed his partiality.He would have lost nothing by it, and in fact would havehelped to clean the dirty political environment in the state.

As the trial progressed, some wellwishers suggested thatAdvocate Ram Kumar and myself keep away from Ernakulamfor a few days. We did so for two days. Many witnessesappearing in court received threatening letters, but nonetook them seriously.

� � ��

I fought eight cases in different courts over Rajan’sdisappearance. Though I was not familiar with the courts andtheir proceedings, there were no flaws in the conduct of thesecases. It was not because of my efficiency, but due to my lawyersand the inherent honesty of the case itself that all of themsucceeded. I entrusted everything to Advocates Eeswara Iyerand Ram Kumar. I trusted their efficiency and honesty. I don’tknow how to thank them for this.

I have described how I found the witnesses for the case,and also how the habeas corpus writ was filed. Till then I wasunder the impression that the High Court or upper courtswould not summon the witnesses and that their affidavitswould be accepted as proof. So I had assured these witnessesthat they wouldn’t have to appear before the court. But atthe beginning of the hearing, Mr. Eeswara Iyer declared thatwe were ready to present all our witnesses in court and thatthey could be cross-examined. This statement surprised theother advocates. Such a thing had not happened before in

the hthat talso iGoverhad nhearinorder

Eembawouldbeforas I wunfousame Varierto knoinformwas wthe wincluMr. V

TMr. KInspeGeneSupesubmarrest


45

the history of the High Court. But Mr. Eeswara Iyer arguedthat this had happened in other courts in the country andalso in the Privy Council in England. The pleader for theGovernment of Kerala, Advocate General Mr. T. C. N. Menon,had no counter arguments, so the two Divisional Bench judgeshearing the case, Justice Potty and Justice Khalid, agreed andordered accordingly.

Everybody was happy about the court order, but itembarrassed me a bit as I had not told the witnesses that theywould have to come all the way to Ernakulam and appearbefore the High Court. I was worried about their reactions,as I would have to request them to appear. But my fear wasunfounded. Everyone expressed readiness to come. Thesame day I sent my brother Madhavan and his friend Mr. RamaVarier to Calicut to get the witnesses. It was then that I cameto know of secret movements by the police against the case. Iinformed my friends in Calicut, and they remained alert. Iwas worried until my brother and his friend returned withthe witnesses, but things moved so well that all the witnesses,including the principal of the Engineering College,Mr. Vahabudeen, appeared before the court in time.

The respondents to the case consisted of Home MinisterMr. Karunakaran, Home Secretary Mr. Narayana Swamy,Inspector General of Police Mr. V. N. Rajan, Deputy InspectorGeneral of Police Mr. Jayaram Padikkal, and CalicutSuperintendent of Police Mr. Lakshmana. All of themsubmitted separate affidavits arguing that Rajan was neverarrested and that they had never even seen him.

� � �


46

The court gave its verdict on April 13. The judgesconcluded that Rajan was arrested by the police and torturedat Kakkayam camp. They ordered the authorities to produceRajan by May 22. The verdict created a furore. Therespondents got scared, and filed an appeal in the SupremeCourt.

A Division Bench consisting of Justice P. K. Goswamy andJustice V. C. Tulsapulkar heard the case in the SupremeCourt. Mr. Niren Dey, who was the Advocate General duringthe Emergency, and Advocate Ram Kumar appeared for me.The Supreme Court upheld the High Court verdict. I hadalso submitted a petition to the Supreme Court arguing thatthe accused had submitted false affidavits in the High Court.The Supreme Court found the affidavits of the accused falseand likewise directed the police and government to produceRajan in court. By that time Mr. Karunakaran was ChiefMinister of Kerala. After the Supreme Court verdict he wasforced to resign, sending ripples through national politics.Rajan’s case became a topic of discussion across the country.

The Government of Kerala ordered an enquiry on thefinding of the High Court that Rajan was arrested andtortured at Kakkayam camp. It submitted before the SupremeCourt that this enquiry had found that Rajan was arrestedand tortured at Kakkayam camp. The High Court thenordered that the accused police be prosecuted, and actiontaken against all accused for submitting false affidavits.

Thus there arose two cases. One was the prosecutioncase against the accused police. The other was the case againstall accused for submitting false affidavits. Because these werecriminal cases, the Government Pleader was to conduct them.

As I wcases Chiefthe cChiefthe cthat m


47

As I was sure that the Government Pleader conducting thecases would not obtain justice, I submitted a petition to thenChief Minister Mr. A. K. Antony seeking permission to conductthe cases with advocates of my choice. I also informed theChief Minister that I would meet all expenses in conductingthe cases. But he refused me permission, thereby provingthat my fear was not baseless.

� � �


48

The trial at Coimbatore

Another case was registered at Coimbatore DistrictCourt against the arrest, torture and killing of Rajan.It had been transferred there on the request of the

accused. There was no role for me or for my advocates in theconduct of this case either. An army of prominent lawyerscame to argue the case for the accused, including Mr. RatnaSingh, now the Advocate General of Kerala, for Mr. JayaramPadikkal. Advocate K. P. Achutha Menon from Calicut wasarguing my case for the prosecution. He was eighty years oldand obviously weak.

All the important newspapers in the country haddeputed their best correspondents to report the proceedings.The reports of Mr. Appukkuttan Vallikkunnu created ripplesthrough out the state.

JCoimwitneKakka

Twas tstatembeforunderlike th

Iprosefor thby theconvobe verI felt that aSomerememas I wand tsingleembaFinallwante

Istrangdifferjust a


49

Justice M. Fakir Mohamed heard the case in theCoimbatore Session’s Court. There were almost a hundredwitnesses, among them, almost eighty victims of torture atKakkayam camp.

The remarkable thing about the prosecution witnesseswas that all of them turned hostile. They withdrew thestatements they gave to the enquiry officers and deposedbefore the court that their earlier statements were madeunder torture, and were not true. No other witness behavedlike this.

I was examined for almost two days continuously byprosecutor Mr. Achutha Menon, as well as by the advocatesfor the accused. I had to be in the witness box for examinationby these ten people for almost ten hours, but none of theirconvoluted questions could weaken me. I thought I wouldbe very scared, but what happened was the other way round.I felt bold somehow. The reason for that might have beenthat all I was telling was the truth and nothing but the truth.Some advocates tried to confuse me, but they failed. I stillremember one thing. I was about to answer a question, andas I was answering, one of the advocates angrily interruptedand told me, as if it was a command, that I must answer in asingle word. I told him “no” emphatically and without anyembarrassment, leading to some arguments between us.Finally the judge intervened to allow me to say whatever Iwanted.

If the defense lawyers tried to examine me like this, thestrange method of the prosecutor Mr. Achutha Menon wasdifferent. On the last day of cross-examination he asked mejust a single question. Even this question had nothing to do

� � �


50

with the case: “Did you not come along with your lawyerMr. Ram Kumar, from Ernakulam to Coimbatore, to be thewitness in this case?” I got embarrassed as to what this questionhad to do with the case. Whether I came with Mr. X or Y hadnothing to do with the case. Such an irrelevant question froma famous lawyer in the court made me wonder. “Yes,” Ianswered, and waited for more questions. But with thatquestion his examination was over. The motive of theauthorities in appointing this advocate as prosecutor for suchan important case can be assessed by all, but the accumulatedshortcomings in the conduct of the case pointed to aconspiracy behind it.

The enquiries against Rajan were conducted fully by theCrime Branch, but the majority of the accused belonged tothe local police. The court concluded that only the CrimeBranch police were responsible for the crime, namely,Mr. Jayaram Padikkal, Mr. Murali Krishna Das and Mr. KunjiRaman Nambiar. Observing that the charge that the accusedpersons were responsible for torturing and killing Rajan wasnot proved beyond doubt, the court exempted them fromthe charge of murder. They were sentenced to just one year’ssimple imprisonment for some minor crime. All threeappealed to the Madras High Court. The Advocate Generalof Madras, Mr. Rajamanikkam, represented them in court.One advocate, Mr. Sankaran, represented my case. Becauseit was an appeal case, no retrial was necessary. After thearguments and counter-arguments, the High Court acquittedall three.

� � ��

Now Advocbehinhighefor altake aAdvocwas vewas inAdvocadvocthe pothe ofpost, Swedithat ifpermto speSo wi

OCourtthat, anyonThoulike a angerthe wpersoto wasit was


51

Now I have something to say about Mr. Niren Dey, who wasAdvocate General during the Emergency. There was a storybehind his becoming the Advocate General, which is thehighest legal advisor to the Government of India, responsiblefor all the legal actions of the government. Usually advocatestake a firm stand on legal issues with the government whileAdvocate General, but during the Emergency the situationwas very different. The government led by Mrs. Indira Gandhiwas involved in naked human rights violations, and beingAdvocate General meant justifying all these. So no senioradvocate in the country worth his name was ready to take upthe position at that time. Mr. Niren Dey himself firmly rejectedthe offer made by Mrs. Indira Gandhi to be appointed to thepost, but there was heavy pressure on him. His wife wasSwedish, and in Sweden. Mrs. Indira Gandhi threatened himthat if he refused to take up the post, his wife would be deniedpermission to enter India. She informed him that if he wantedto spend his old age with his wife, he should accept the post.So with great pain and reluctance he accepted.

Once Mr. Niren Dey made a statement in the SupremeCourt, in front of all judges and senior advocates. He saidthat, “Every single policeman has the right to shoot and killanyone on the road today. Nobody has the right to question.”Though he made such a statement, it weighed on his mindlike a sin. The common person in the country expressed deepanger against this statement, but his real intention was to tellthe world how horrible the situation was for the commonperson in India during the Emergency. Mr. Niren Dey wishedto wash the stains of the Emergency from his personality onceit was over.

� � �


52

One day Advocate Eeswara Iyer called me over thephone. Mr. Karunakaran’s appeal was ready for hearing inthe Supreme Court. Mr. Eeswara Iyer told me that Mr. NirenDey had volunteered to argue my case in the Supreme Courtfree of charge. I was shocked. The Niren Dey of theEmergency was still fresh in my mind. But Mr. Eeswara Iyerknew the real Niren Dey, so I decided to entrust the case tohim.

� � ��

The only way out for me after the Coimbatore and High Courtverdicts was to approach the Supreme Court with an appeal.But in my situation it was impossible. I decided not to doanything further and sat back helplessly. It was then thatMr. Mukundan Menon, a human rights activist, approachedme. He informed me that one of the senior-most advocatesin the Supreme Court, Mr. Tharkunde, had studied my casevery carefully and felt that the case had a chance for appealat the Supreme Court. He said Mr. Tharkunde would appearfor me free of charge and that with just Rs. 20,000 the casecould be conducted. I informed Mr. Eeswara Iyer andMr. Ram Kumar about this. Both agreed that had to try, withthe help of Mr. Tharkunde. But Rs. 20,000 was a big problemfor me. Advocate Eeswara Iyer advised me to approach theCommunist Party Of India (Marxist) for financial help. Theonly leader whom I knew in the party was Mr. ViswanathaMenon. I approached him, and through him the party agreedto help me.

IanothMr. Pdaughwas thmarristand


53

I contacted Mr. Tharkunde. He introduced me toanother advocate, Mr. Pareekh. I entrusted the case withMr. Pareekh, as Advocate on Record. Mr. Tharkunde’sdaughter was practicing with Mr. Pareekh, and actually shewas the one who looked after the case. Meanwhile she gotmarried and left Delhi, and with that the case came to astandstill.

� � �


54

The case forcompensation

I filed a civil case demanding compensation for the deathof my son. The accused consisted of the Government ofKerala, Mr. Jayaram Padikkal, Mr. Lakshmana,

Mr. Kunjiraman Nambiar and Mr. Pulikkodan Narayanan. Thecase was first filed at the court at Vadakara and latertransferred to Calicut as demanded by the accused.

I had to pay the court a huge amount of money as courtfees for this case. Since I couldn’t afford to pay the amount,I filed a petition to the court submitting that I am a pauper,hence I might be exempted from paying the court fees. Forthe court to accept this petition I had to prove that I was verypoor financially. But the accused, including the Governmentof Kerala, argued that I was financially well off and that I hadthe capacity to pay the court fees. They tried to find out whereand how much wealth I had.

Tcase. persoAdvocwas loCalicuarmy for thcase swondappoiarguenow kWhenjudicidonechangthe pappoisorry,

Tcase. me R

TKeralfor nreporwas thwas iburea


55

The case at the Coimbatore Sessions court was a criminalcase. But the case for compensation was a civil case and I waspersonally responsible for conducting the case. At this timeAdvocate Eeswara Iyer passed away. So Mr. Ram Kumar alonewas looking after the case, and to help him, an advocate fromCalicut named Mr. Sreedharan Pillai. The accused had anarmy of very prominent and efficient lawyers arguing the casefor them. The fact that Advocate Ram Kumar argued thecase successfully against these prominent lawyers was itselfwonderful. The public prosecutor Mr. Achutha Menonappointed by the then Chief Minister Mr. A. K. Antony hadargued my case in the criminal trial at Coimbatore. All readersnow know the shabby way in which he conducted the case.When these two cases are compared, the discordance in thejudicial system is embarrassing to those who wish to see justicedone. Nowadays, the practice of changing prosecutors bychanging governments, even monthly, is also increasing. Whenthe prosecutor for the notorious Soorya Nelli case wasappointed, I wondered what the fate of that case would be…sorry, I am straying away from the topic.

There were almost sixty witnesses in the compensationcase. At its conclusion, the court ordered the accused to payme Rs. 600,000 compensation individually or collectively.

The day after the court verdict, the Government ofKerala started proceedings against me to confiscate my house,for not paying the court fees for the case. The newspapersreported this with great importance. The surprising factorwas that never had the government moved so fast and neverwas its machinery so efficient as in this instance. Thebureaucracy was attempting to tarnish the image of the left

� � �


56

front government then lead by Mr. Nayanar, state leader ofthe Communist Party of India (Marxist). But the ChiefMinister could figure out what was going on, and as soon asthe news reached him, Mr. Nayanar issued an order to theDistrict Collector in Ernakulam to pay the full amount ofcompensation due to me. The Collector came to me thatafternoon with a draft for the amount, which I cashed, paidwhat was owed to the government, and saved myself.

WThe mMr. Rme, rmonepainemy brall thdisappreplieheart


Professor T. V. Eachara Varier

Rajan’s mother, the late P. Radha

Rajan and his two sisters,Ramadevi (elder) on right;Chandni (younger) on left

Professor Varier (left), with his sister Kochammini Varasyar, herlate husband, Mr. Achutha Varier, Rajan and his two sisters

Rajan giving a speech

57

The Rajan Memorial

When the verdict of the compensation case wasreported in the major newspapers, there wereunexpected reactions from very different corners.

The most emotional reaction was that of my elder brother,Mr. Ramankutty Varier. After seeing the news he came tome, rather embarrassed, and asked angrily, “So you needmoney out of selling the blood of Rajan for a living?” Thispained me so much. I never expected such a reaction frommy brother who had stood with me and helped me duringall these cases. “Your disillusionment and disturbance willdisappear once you know how this money is to be used,” Ireplied, with tears in my eyes. He cooled down, though half-heartedly.

� � �


58

Many people, including Mr. Eeswara Iyer and Mr. RamKumar, had pressured me to go for a case for compensation.That was why I filed the case; otherwise, I too would havethought like my brother.

There were enquiries as to what I was going to do withthe money. I had to keep my word to my brother, so I declaredmy intentions in a press conference. After hearing the news,my brother again came running—this time to congratulateme.

Of the Rs. 600,000 granted, I had to pay almostRs. 100,000 in court fees. I spent almost Rs. 50,000 institutingsome endowments in the name of Rajan at Calicut Universityand Engineering College, and for the youth festival.

I started work on the Rajan memorial with Rs. 400,000.My aim was to build a ward in the general hospital atErnakulam. This was what I announced in my pressconference. I approached District Hospital SuperintendentMr. Bhaskara Varier. He suggested that instead of going for ageneral ward, I should consider building a special ward for aspecial purpose—for the common person. He also told methat in the general wards beds often remained empty. Iaccepted this suggestion, for he knew these things betterthan I, and don’t regret that decision even today. Accordinglya “critical care ward” was built. This is still the only ward inthe general hospital where the beds are not empty; it is alwayscrowded with patients.

Mr. Nayanar the Chief Minister was generous enoughto allot me a plot of land in the hospital compound. TheHealth Minister, Mr. Shanmughadas, took special interest ingiving me permission to build the ward. An engineer named

Mr. KRajanof conabout

Ttherethe sathe Dthe hIt wanthe H

Hand wwouldwas thchaptColleconst


59

Mr. Karmachandran, who happened to be a classmate ofRajan from sixth standard in school till his death, was in chargeof construction from start to finish, so I did not have to worryabout anything during the construction work.

The only concern was when construction was half donethere was an attempt to demolish it and build a bus stand atthe same place. As far as I know this suggestion came fromthe District Collector. When it became aware of this plan,the hospital development council immediately informed me.It wanted the ward to be built there. So we filed a petition inthe High Court, which stopped the move.

Halfway through the construction I ran out of moneyand was worried. If I had made a public appeal for funds Iwould have received help, but I was reluctant to do that. Itwas then that Mr. Karmachandran informed me that the Dubaichapter of the old student’s association of the EngineeringCollege was ready to extend financial help to complete theconstruction, and so that problem also was solved.

� � �


60

Remembering theEmergency

In the history of India, the days from June 22, 1975 toMarch 21, 1977 were the black days of the Emergency.Many in the country are unaware of what the Emergency

meant, and how it affected the lives of common people. AState of Emergency is declared under special circumstances.Emergencies have been in force in different countries to faceforeign aggression, or deal with internal violence. When aState of Emergency is declared, it affects the whole populaceof a country.

In India, the Emergency was declared not to protectthe country from danger, but to protect the personal interestsof a single leader, Mrs. Indira Gandhi, the then PrimeMinister. She had been defeated in elections. She then filedan election petition, which she lost, and she appealed to the

Higheverywshe dpowerthe Esorts

Tin 19everywfully eIndia compare thare pThe capplipersoshouland s48 hoRajanThe mtwo mknowof thi

TpublidangeLike vchanc


61

High Court and the Supreme Court. She lost her caseeverywhere. After that, to safeguard her own political positionshe declared the Emergency, thereby concentrating allpowers in herself. Most of the country was in deep sleep whenthe Emergency was declared. India awoke in darkness. Allsorts of human rights were taken away mercilessly.

The Universal Declaration of Human Rights was declaredin 1948. It encompasses the rights of people anywhere andeverywhere in the world. To make sure that these rights arefully enjoyed by the common person, the Supreme Court ofIndia had made certain suggestions. Justice V. R. Krishna Iyercompiled these into law. Of these, the most important onesare the right to life and the right to know. If these two rightsare protected, all others will get protected along with them.The clause dealing with the right to life makes clear the rulesapplicable during arrest, and details of the rights of theperson arrested. It clearly instructs that the person arrestedshould be brought before the court within 24 hours of arrest,and subjected to medical examination at least once within48 hours of arrest. If the authorities had obeyed these rules,Rajan’s case and others like it would never have happened.The most inhuman aspect of the Emergency was that thetwo major human rights, the right to life and the right toknow, were totally denied. The tragedy of my son was typicalof this denial of rights.

The Emergency was lifted over 25 years ago. The generalpublic has forgotten those days almost completely. This isdangerous. The dark powers of the Emergency are still there.Like venomous snakes they are hiding in their holes. Given achance, they will raise their heads again, so people need to

� � �


62

be constantly alert. There should be strong defenses built toface these dark forces, I feel. Even at the beginning of Rajan’scase, I declared that such an incident should never be allowedto happen in the country again. All my work since has beenaimed at this. This book also is a part of that work.

To alert people against the powers of the Emergencywe toured the state in a procession. All the people who weretortured during those days were represented. All politicalparties not in power during the Emergency cooperated withus. Left wing youth organizations like the Students Federationof India and Democratic Youth Federation of India were theorganizers. Mr. Kodiyeri Balakrishnan and Mr. P. P. Dasanrepresented those two groups respectively. Mr. GopiKottamurikkal representing the Communist Party Of India(Marxist) and Mr. Ettumanoor Radhakrishnan representingthe Bharatheeya Janatha Party were also in the procession. Iwas its captain. All throughout Kerala people gave theprocession a rousing reception. Thousands came to greet us.

A woman from Malappuram district carrying a small babyin her arms also participated. Her husband was a village officerwho had been arrested after being branded as an extremist.He died in police custody. The reason for his death is stillunknown. The police claim he died when the police jeep inwhich he was being taken caught fire. The procession’s aimwas to meet and submit a memorandum to the Chief Minister,Mr. A. K. Antony, and request him to get the village officer’swife a job in the government service, to redress the death ofher husband. The Chief Minister could have saved that family,but he didn’t react positively.

HoftenI am s


63

History doesn’t pardon a lack of reaction and lazinessoften. I fought a lonely battle for my lost son. Though tired,I am still carrying on.

� � �


64

With malice against none

I am nearing the end of my struggle, like a kalam painterwho has portrayed life with the colours of pain, tearsand alarm. Something always remains behind, even when

trying to console oneself that all that has happened isinevitable destiny. Among the dark colours and lighted lamps,this artist becomes lonelier by the second. I have aged, andneed somebody else’s help to walk. Every outstretched handshowers kindness on me.

It was raining heavily last night. Lightning peepedthrough my window in silver flashes. It might have been late;the rhythm of deep sleep was around me. I was at mydaughter’s house, where the window opens onto a pond. Thewater was shining in the lightning. Rajan comes into mymemory now. He comes into my memory as shadows,moonlight and rain. One friend asked me, which is denser—the pain of the father at the death of his son or the pain of

the sohas bfather

Asoul amysteif thiswhomrememfatherhandsand hare yo

Tchildhsleep,had mstorie

Iplacecold wtorchpaddyhis scommagainthe shMenoand ueyes r


65

the son at the death of his father? I have no answer. My worldhas become empty. My sun has set. My stars have gone. Anyfather can cry out for his son, getting wet in radiant memories.

At some point I start believing in the existence of thesoul after death. A burned soul is crying out, from whichmysterious wilderness I don’t know. He would have been hereif this soul had sight to know the way. Here was a motherwhom he loved and who walked away into the eternal darknessremembering him, and me, a father, left behind. This weakfather can’t move about without another’s help, but thesehands are still shivering. These hands, which lifted him upand hugged him close to the chest, are still shivering. Whyare you not coming, my little child?

The feeling that the rain aroused in me during mychildhood, that rain lashing over the roof late at night in mysleep, has faded away. That rain, falling on the slanting roof,had music. Now I feel that the rain is telling me unheardstories; I go back to sleep, deep in the rhythm of pain.

In my childhood, the communists reached my nativeplace of Cherpu drenched in these rains, shivering in thecold wind of the month of Karkidakam. Behind every burningtorch that appeared at night on the other side of the vastpaddy fields, there was the heartthrob of a communist andhis sympathiser. The thoughts and feelings of thesecommunists were very bright, even on those rainy nights,against the symphony of frogs and crickets. I still rememberthe shining light I saw in their eyes those days. Mr. AchuthaMenon was one of them. That Mr. Menon with tired eyesand unshaven face woke me up from sleep at midnight, hiseyes raining intense and fascinating compassion. But later…

� � �


66

The heavy rain never stopped. Seasons came and went.Those who learned about the country, its people and soil,later forgot the rain and those wet green fields. The cries ofthe frogs and crickets, and the heat and light of the burningtorches, became strange to them. Mr. Achutha Menon wasone of those too. He became a stranger to me. Those wholoved and adored him might have been able to recognizeand follow him. Let them pardon the distorted vision of thisold man, but I cannot say thanks.

I don’t feel malice towards anyone. Let me hold close tomy heart those tired eyes and that unshaven face, whichrained stars of compassion. My memories are faded, but Ican’t forget many things of the past. This life trained me togo down deep into the whirlpools of human existence. I sawcruelty, and the helplessness of losing everything. I saw thehigh peaks of love, too. As if after a short dream, Rajan’sdisappearance awoke me from the natural indolence of aHindi teacher. It was an odyssey from then on, begging forthe alms of human awareness and compassion.

� � ��

Koru, Benhar and Chathamangalam Rajan told me aboutKakkayam camp, shivering while narrating stories ofbloodclotting torture, as if trying hard to forget. I never asked;I never wished to know. Still they told me all.

Mr. Jayaram Padikkal would sit on a chair and pass orders,while police jeeps rushed in and out and youngsters weredragged forth. They were beaten, and then tied to a wooden

benchwouldpain, the pwoulquesthandsworkeKoru to diebe he

Wdescrmore

Mthe riKayanin hiswearyHe crAt thethat hPadikand gthem that tbeganWith becam


67

bench with their hands and legs down. A heavy wooden rollerwould be rolled over their thighs; many could not stand thepain, and fell unconscious. To prevent them from crying out,the police pushed cloth into their mouths. Afterwards, theywould be bought before Mr. Jayaram Padikkal. Whilequestioning them, he would roll a sharpened pencil in hishands; suddenly he would stab the pencil into the musclesworked loose from the bones on the thighs of the tortured.Koru said that at that moment you thought it would be betterto die. The cries from being stabbed with that pencil couldbe heard outside the camp.

Why torture so much? They were shivering whiledescribing all this. When one gets over the pain of the body,more wounds are born in the mind.

My son Rajan was tortured first. They asked him wherethe rifle was that had been stolen during the attack on theKayanna police station. He had never been beaten even oncein his short life, so with the first round of torture he becameweary. Then he was tied to the wooden bench and rolled.He cried out for his mother; they stuffed cloth into his mouth.At the end of the torture, to get away from it he told themthat he would find the rifle. Then he was taken to Mr. JayaramPadikkal, who told the policemen to take Rajan to a jeepand go in search of the rifle. Then he cried again. He toldthem that he was not aware of the rifle at all, and had saidthat to escape further torture. Mr. Pulikkodan Narayananbegan kicking him in his stomach with his heavy police boots.With a loud cry he fell back and writhed on the floor, thenbecame quiet and motionless.

� � �


68

The policemen started to worry when they were surethat Rajan was dead. Other youngsters overheard some ofthe duty guards murmuring that one had been killed duringthe day. They packed Rajan’s body into a sack and took itaway in a jeep. They burned it in the midst of some forestwith sugar, to ensure that not even the bones would be leftbehind, so it was said.

These are all stories told by the children who got out ofthe camp alive. When they showed me the never-fading scarsof torture on their bodies, saliva filled my mouth and darkness,my eyes. A whistle echoed in my ears. For a moment Iremembered the son who would have come back with anengineering degree, the son of my expectations.

The light went away. No, it didn’t go away; it was beatenaway. Somebody said that Rajan was begging for his life beforePulikkodan Narayan kicked him to death. Enough children,enough—enough of these stories of my son begging for hislife. His tender face comes into my mind, begging for lifewith hands pressed together. Oh my son, please pardon thishelpless father, I cry out.

The world of stories is going away. In every piece ofknowledge there is the echo of truth. The hunters arecontinuing the hunt. The victims are begging for life withpressed hands.

� � ��

I wenand Mthe Ewas rusure Padikdecidthe cl

Mof RaKadhhe wDesabhumaCoimme othe wobserwondemoti

IWhento sit,his hagood after cthe lacurseno, iremem


69

I went around Kakkayam camp with Advocate Ram Kumarand Mr. Appukuttan Vallikkunnu, a journalist. The waves ofthe Emergency had receded. The building where the campwas run had been deserted. It was in a remote place. I feltsure that its remoteness was the reason that Mr. JayaramPadikkal selected it from which to run the camp. Maybe hedecided that the cries from the camp should not even reachthe clouds.

Mr. Appukuttan Vallikkunnu brought out the inside storyof Rajan’s case through a series titled “Kakkayam CampKadhaparayunnu” (“Kakkayam Camp Narratives”). The warhe waged through the Communist Party mouthpieceDesabhimani is a model for the struggle for democracy andhuman rights. He had been deputed to report theCoimbatore hearing, and he was very precise in informingme of the details. He correctly predicted beforehand thatthe witnesses would change sides. His ability to study andobserve the details and to analyze issues struck me withwonder. Within a short time there developed a strongemotional bond between us. He treated me like his father.

I felt emotional as we went around Kakkayam camp.When we entered the room where Mr. Jayaram Padikkal usedto sit, I imagined him in that chair, rolling a sharp pencil inhis hands. It was in this room that my son bid farewell to thisgood earth. It was in this room that he writhed with painafter cruel torture. What might have been in his mind duringthe last moments? He might have cursed; he might havecursed all the green freshness of this world before death…no, it could never have been like that. How could heremember his mother who waited for him every day, his father

� � �


70

who held him as he walked around, and all his dear ones,with a wounded mind? My eyes started getting moist inmemories.

Both Mr. Appukuttan and Mr. Ram Kumar kept quiet.When they talked, they took care to talk only about the case.The crickets and other tiny insects were still crying out fromthe silence outside the camp. I have read of great men whohave talked of life, and struggles from the other end of death.It is sure that death will never be a burden to those who havecrossed those great worlds of ideas and ideals. But I don’tbelieve that Rajan had imbibed those fresh winds of faithblowing through the country after the Naxalbari uprising.When I asked a Naxalite friend of mine whether Rajan wasone of them, he replied that he was only a sympathiser. Thatwould have been the truth. It would have been beyond Rajanto attack a police station and snatch away a rifle. He was soweak in mind that he would not even have been able to thinkof that.

One story is that there was a Rajan among those whoattacked the Kayanna police station, so the police picked upall youngsters with the name Rajan, brought them to the campand tortured them. I could not reconcile this within my senseof justice. The rolling torture was done in front of otherinmates, I was told. Going through the dark alleys of torture,they were also made to see and hear the writhing of thetortured, the loud helpless wailing and drained eyes. As oneprey was writhing, the next was waiting for his turn.

I came to know that Rajan yielded himself silently to thetorture. I have read about people being called to their deathsin Nazi camps. As an officer called out names, others were

queuito calthat tthan

MM/S fathebecauRs. 50otherup tilhungHis mhis dehis de“fatheThinkhowev

“face aable Mr. AThe Kakkanew g

Iin theinflicton itsstood


71

queuing up, waiting for their turn. They even took care notto call a husband and wife together into death; Hitler knewthat the pain of separation and getting lost was more intensethan death.

Mr. Paul, the proprietor of the famous spare parts dealer,M/S Popular Automobiles, was an inmate at Kakkayam. Hisfather contacted Mr. Karunakaran, and got him releasedbecause he came to know of it very early. Mr. Paul hadRs. 500 on him, and when leaving the camp he gave it to theother boys. After influencing someone, they bought food;up till then they were all starving. Rajan was not able to standhunger; such a boy would have been burned in its forest fire.His mother could not even feed him a handful of rice beforehis death. Nor could I offer one to him in funeral rites afterhis death. That still weighs on me. When I hear him calling“father” in the heavy rain some nights it is the cry of hunger.Thinking that my child is hungry, I too never escape hunger,however much I eat.

“We must be able to face everything; must be able toface all that happened with a balanced mind. Only if you areable to do that will we be able to do our social duties,”Mr. Appukuttan Vallikkunnu consoled me. I understood that.The struggle against such brutalities had to begin withKakkayam camp after the Emergency. I should not leave thenew generation to that wooden bench and the rolling.

I fell silent. There were no signs of the police camp leftin the building. The wounds that the thirteen-day-long campinflicted on the bodies of those youths had not been postedon its walls. But those walls knew Rajan’s sighs and cries. Theystood silent and detached, watching the young men writhing

� � �


72

with pain. There were cobwebs on those walls. There weretermites in those closed windows. I opened one of them, andlight entered the room. In which mysterious wilderness is myson’s soul still wandering? I pressed my face against the ironbars. Oh, my son, here is your father…

The sunlight outside blurred my vision. If the soul haseyes, he will be seeing me, I thought. He will recognise mythrobbing eyes. Is there a sound coming out of the dry leaveson the ground outside? Whose footsteps am I hearing? I setmy ears to listen.

I had to face the question of whether or not I hadvengeance towards those police officers responsible forRajan’s death. This question pulled me down into doubt. Igrew up among Hindu beliefs. To one born in a houseguarded by a temple, prayers, offerings and religious customs,the feeling of vengeance is quite unnatural. But whenever Isaw Mr. Pulikkodan Narayanan on television, arguing heatedlywith his curled-up moustache shivering vigourously, vengeanceflashed through my mind. I remembered the helpless andpainful moments my son faced. Unconsciously, I start thinkingof settling the score. A previously unknown anger enteredmy mind. Whenever I think that I have forgotten everything,I remember it more clearly.

� � ��

“You didn’t care for him,” his mother said to me on herdeathbed. Then, I had the face of a father who ran aroundthe country like a horse, running through the days

meancampget himy eypleaspaine

AMr. Vallikup whrepayand u

Mout sorain fclose

Rwhensaid tme. Ithat hafter sang wsomemy so

Ison wopeninot riwith t


73

meaninglessly. But as time withered day after day in Kakkayamcamp, her comment about the helpless father who couldn’tget his son might have been meaningful. I still have tears inmy eyes to weep. This body still has weak throbs of life. Soplease, my dear ones, pardon this cursed father if I havepained you all.

Advocates Eeswara Iyer and Ram Kumar,Mr. Vahabudeen the principal, Mr. AppukuttanVallikkunnu… there were so many who tried to cheer meup when I went down into darkness. With which birth will Irepay them for their outstretched hands, among those unseenand unknown experiences? Thanks, friends, thanks.

My path is ending. The rain that lashed all over will thinout soon. I feel blessed that so many were drenched in thatrain for me, and along with me. Let me hold this feelingclose to my heart as an offering.

Rajan used to sing well. When I wrote that he sang onlywhen his mother asked him, my daughters got angry. Theysaid that Rajan used to sing for them too. He never sang forme. I had no time for his songs. So he might have decidedthat his father should hear his poorly recorded songs onlyafter his death. Oh Rajan, how sad those songs were that yousang while alive, and which I never heard then. I see in themsomething that meditates for death. Did you hate life so much,my son?

I shall stop. The rain is still lashing out. I remember myson when this heavy rain drums my rooftop, as if someone isopening the locked gate and knocking at the front door. It isnot right to write that a living soul has no communicationwith the soul of the dead.

� � �


74

I hear his songs from a cassette on this rainy night. I amtrying to retrieve a lost wave with this tape recorder. Thegood earth is getting filled with songs till now unheard byme, this crude man. My son is standing outside, drenched inrain.

I still have no answer to the question of whether or notI feel vengeance. But I leave a question to the world: why areyou making my innocent child stand in the rain even afterhis death?

I don’t close the door. Let the rain lash inside and drenchme. Let at least my invisible son know that his father nevershut the door.

I am word dawnthe frjob, toa painthis btendeof ani

Pa teaclanguand tlife buis a pone srage, the AcoopebringgratefAsianK. G.

Ithan But Iruled


75

From the translator: It is raining

I am putting down these sentences after translating the lastword of this book, Memories of a Father. The day has notdawned yet and it is raining. I rang up Mr. K. G. Sankarapillai,the friend, guide and teacher who entrusted me with thisjob, to say I have finished. I was crying like a baby. It was sucha painful journey. I was in the woods as I travelled throughthis book word by word: a wilderness of cruelty, killing,tenderness, kindness and love—a wilderness where all sortsof animals make their homes; the wilderness we call our world.

Professor Eachara Varier, who wrote this book, is not onlya teacher but a poet and a fighter too. He was a teacher oflanguage who took young students into the clouds of poetry,and taught them not only to get immersed in the poetry oflife but also to fight the darkness around them. Every fighteris a poet too, he reminded us. As Dylan Thomas has put it,one should not go gentle into that good night; one shouldrage, rage against the dying of the light. The rage is on sincethe Asian Human Rights Commission, Hong Kong, with thecooperation of Jananeethi, in Trichur, Kerala, decided tobring out this saga of struggle in English. For this we must begrateful to Mr. Basil Fernando and Dr. Philip Setunga of theAsian Human Rights Commission, as well as ProfessorK. G. Sankarapillai and Fr. George Pulikkuthiyil of Jananeethi.

I now know what a struggle it was to make man morethan an animal, to retrieve all that is human in this species.But I also know now that this wilderness is controlled andruled by animals: the carnivorous ones. Blood is in their

� � �


76

mouths; vengeance cannot tame them. Will this strangestruggle of tolerance and forgiveness finally do it? I don’tknow; but the struggle should continue in some form oranother. Every humane quality should be retrieved andpreserved for generations to come, for purer water andcleaner air, a clearer sky, stars and moon, for our rain andrivers, for everything around us.

I was caught inbetween the father and the son, or rather,my father and my son. Did my father wait for me like this?Will my son go away like this? My father, the late Sri Premji,acted in the role of this father in the much-acclaimed filmPiravi. In my journey through this book he was with me, tellingme how painful it was to act out the role of a father who losthis son, but went on waiting for him. My dear father walkedalong with me into this wilderness, holding my hand. At theend of it, here I am looking back to see whether my son isstill there or not. I now know that no sun sets. There is lifeeven after death. Memories are the branches where the deadnest.

It is raining. I too am drenched. The rain cleanseseverything, but scars of old wounds remain; they cannot bewashed off that easily. Because of these scars, the struggleshould continue, to recreate us as more beautiful people.

The day has not dawned yet. It is still raining.

Neelan,Trivandrum,October 23, 2003

SECR

Cregardin

Simmunimerely bthat in Hinto a faand no requires

arrest anbeen arr

though suit theinto powould bthe respin the Sfollow


77

Appendix:The High Court judgment

1977 K. L. T. 335Subramonian Poti & Khalid JJ.T. V. EACHARA VARIER

v .SECRETARY TO THE MINISTRY OF HOME AFFAIRS & OTHERS

Constitution of India, Art. 226—Writ of Habeas Corpus—Disputeregarding the issue of the detention–Evidence if can be taken by the court.

So long as it is the duty of the court to protect freedom of a citizen and hisimmunity from illegal detention the court cannot decline to exercise its jurisdictionmerely because a dispute has arisen on the issue of the detention. “It is wrong to thinkthat in Habeas Corpus proceedings the court is prohibited from ordering an inquiryinto a fact. All procedure is always open to a court which is not expressly prohibitedand no rule of the court has laid down that evidence shall not be received if the courtrequires it.”

1964 SC 1625; 1972 SC. 1140 Relied on

Constitution of India, Art. 226—Writ of Habeas Corpus—Respondents denyingarrest and custody of person sought to be released–Court finding on evidence that the person hasbeen arrested by Police Officers–Relief to be granted in such cases.

A writ of habeas corpus need not be equated with its counterpart in England,though analogy may be drawn from it. The High Court has power to mould reliefs tosuit the requirements. In this case, having found that the petitioner’s son was takeninto police custody and has not yet been released or accounted for by the police wewould be distressed at leaving the matter there merely because of the affirmation bythe respondents that the boy is not with them under the custody of any police officerin the State. If in spite of the facts that have come to light in this case no consequencesfollow it may lead to continued use of unfettered powers by the executive and

� � �


78

especially the police which may ultimately erode the basic values on which thedemocratic way of life in this country is founded. If we are not satisfied about theanswer by the respondents particularly because no explanation is even attempted asto how they have dealt with the son of the petitioner and where he is at present weshould be able to deal with the matter. Personal freedom and liberty is the mostcherished fundamental right of an individual and when we find as in this case that theauthorities who have the backing of the police force of the State have infringed thatfreedom by taking a person into illegal custody we will not be satisfied unless it isshown that it is not possible for this Court to exercise its power to set the person atliberty. The very vehement plea by the Additional Advocate General that any directionwould result in finding the respondents guilty of something for which they are notshown to be personally responsible and therefore we should desist from issuing anywrit does not impress us at all. Our objective is not to impose any punitive actions forthe improper conduct of any official but invoke and exercise the authority placed inthis Court to protect the citizens’ freedom solemnly remembering the obligation ofthe Higher Judiciary of the land to act as sentinels of human liberty whenever andwherever there is serious threat to it. The petitioner’s grievance is genuine. As adistressed father he invoked the powers of the Court to command whoever is incustody to direct production of his son in this Court so that he may be released.Having positively found on the evidence that the son of the petitioner has been takeninto police custody and on the presumption that unless it is shown that the custodycame to an end it would have continued with the police, we cannot but grant reliefin this case. But we shall not foreclose the opportunity of the State to make amendsfor what it should have done earlier. What we have in mind by way of direction tobe issued in this case would, we hope, achieve this object. When the fact is thatofficers using police power of the State take persons into custody and deal with themas if such custody is required for the purpose of interrogation, it is not necessary thatthe petitioner should show which officer has the custody of the person at themoment. To say otherwise would be to unreasonably limit the doctrine of habeascorpus and deny the legitimate exercise of the function of this court. If the son ofthe petitioner came into police custody in whose custody he is at the moment is amatter which must be peculiarly within the knowledge of respondents in this caseand in such a case the writ must issue against those persons who are in a position togive effective compliance to the writ.

1966 S.C. 81; 1892 A.C. 326 Relied on

S. Easwara Iyer & K. Ramakumar For Petitioner

Addl. Advocate General (T. C. N. Menon) For Respondents

SThe pein the RThe pe1-3-197not mapetitionarrestewas in fto get athe timresult.

2of Hindhave bkind offield ofAssoci

3that he the detthat theDeputyresponthe StatState SSri Karit. He s15-6-19petitionstated ibeen arknow athat at lsufferin


79

JUDGMENT

Subramonian Poti, J: — The case before us is unique in several respects.The petitioner here is the father of one Sri P. Rajan who was a final year studentin the Regional Engineering College, Calicut during the academic year 1975-76.The petitioner complains that his son Rajan was taken into police custody on1-3-1976 when Rajan was staying in the College Hostel and so far the police hadnot made known his whereabouts. The Principal of the College informed thepetitioner by registered letter sent on the same day that his son had beenarrested by the police. This was at a time when the proclamation of emergencywas in force. The petitioner has not seen his son thereafter nor has he been ableto get any definite information about him. The only remedy available to him atthe time was to make representations to the authorities which he did with noresult.

2. The petitioner has been residing in Cochin after he retired as a Professorof Hindi in the Government Arts and Science College, Calicut. Rajan is said tohave been a fairly bright student and he is said to have never indulged in anykind of political or objectionable activity. His only activity was said to be in thefield of Music, Drama and other arts, He had been the Secretary of the ArtsAssociation in his college in 1973-74.

3. The petitioner’s case is that he did not know why his son was arrested,that he made enquiries to police officers, who, he felt, would be able to give himthe details about his son’s arrest and also about his whereabouts. It was thenthat the petitioner understood that Rajan was arrested under directions of theDeputy Inspector General of Police, Crime Branch, Trivandrum who is the 3rdrespondent in the petition and was kept under custody of the Crime Branch ofthe State Police. The petitioner avers that he met the then Home Minister of theState Sri K. Karunakaran on 10-3-1976 and complained to him, whereuponSri Karunakaran promised to look into the matter. But nothing turned out ofit. He sent a petition to the Home Secretary to the Government of Kerala on15-6-1976, another on 1-7-1976 and yet another on 6-8-1976. To all these, thepetitioner avers, there was not even a reply or acknowledgment. The petitionerstated in the earliest petition, copy of which is filed as Ext. P1 that his son hadbeen arrested on 1-3-1976 and ever since then the petitioner has been unable toknow anything about the whereabouts of the boy. The prayer that he made wasthat at least the whereabouts of his son may be make known to him so that thesufferings of himself and his family, may be alleviated. It appears that the

� � �


80

petitioner continued his efforts at getting some information about his son butsimilar representations made to the President of India and Home Minister tothe Government of India with copies to all the Members of Parliament fromKerala. The President of India informed the Petitioner that the matter hadbeen referred to the Chief Secretary to the Government of Kerala. The petitioneravers that he made similar representations to the Prime Minister of India andothers too all with no effect.

4. The Petitioner further avers in his affidavit that two of the ParliamentMembers from Kerala, late Sri A. K. Gopalan of the Lok Sabha andSri V. Viswanatha Menon informed him of the intimation received by themfrom the Prime Minister and the Home Minister to the Government of Indiarespectively that the matter was receiving their attention. Sri Viswanatha MenonM.P., also informed the petitioner that the matter was raised by him on thefloor of the Rajya Sabha and by Mr. Samar Mukerji M.P. in the Lok Sabha.

5. The petitioner made his representation to the then Minister for HomeAffairs in Kerala, Sri Karunakaran. In that letter it was pointed out that Rajan’smother had become insane by reason of these developments and she washospitalized. Ultimately when pursuant to the notification ordering electionsin the Lok Sabha most of the political prisoners were released the petitionerwas hoping that his son Rajan would also be released. In the meanwhileSri Viswanatha Menon supplied the petitioner with a copy of the intimationreceived by him from the Home Minister of Kerala that the release of Rajanwas under consideration. It has turned out during the course of the proceedingsthat the reference is to the letter dated 10th December 1976 written by theHonourable Minister for Home Affairs Sri K. Karunakaran to Sri ViswanathaMenon. Therein he acknowledges the receipt of a letter written by ViswanathaMenon to him enclosing an application praying that Sri Rajan, son of Sri EacharaVarier should be released from detention. He informs Sri Viswanatha Menonthat the said matter was under consideration. Ext. P3 is the copy of thatintimation.

6. The petitioner further avers that on receiving the copy of Ext. P3 fromViswanatha Menon he met several police officers to ascertain the whereaboutsof his son Rajan and coming to know that some of the students who had beensimilarly arrested were detenues in the Cannanore Central Jail the petitioner wasvigorously searching in vain for his son in the three Central Jails of the State andalso in the various other police camps and other places. He is said to have metthe then Chief Minister Sri Achutha Menon several times and he further aversthat Sri Achutha Menon had personal knowledge of the arrest of his son and

also of met Srisaid thHome public public.candidKalpetis said involvedetentibeen prProcedsuspen

7son in therefohe be rof KeramovedSri Karresponparties.

81st respreceiptthe Hoby the pof Indiaction.from SKerala to the IIt is furthe Gomade intaken inabout inform


81

also of his detention. However, it is said that on the last occasion the petitionermet Sri Achutha Menon the latter expressed his helplessness in the matter andsaid that the matter was being dealt with by Sri Karunakaran, Minister forHome Affairs. The petitioner is seen to have thereafter appealed to the generalpublic in Kerala by expressing his grievance in a pamphlet distributed to thepublic. He further avers in the petition that the Home Minister, who was acandidate in the recent elections, addressed several public meetings in Mala,Kalpetta and other constituencies of the State and in some of the meetings heis said to have made mention of the fact that the petitioner’s son Rajan wasinvolved as an accused in a murder case and that was why he was kept indetention. If that be the case, according to the petitioner his son should havebeen produced before a Magistrate under the provisions of the Code of CriminalProcedure, in spite of the fact that the rights under Articles 21 and 22 remainedsuspended during the period of proclamation of emergency.

7. It is therefore pleaded that the further detention of the petitioner’sson in the police custody to which he was taken is without any authority andtherefore the respondents must be called upon to produce his son in court andhe be released. The 1st respondent is the Home Secretary to the Governmentof Kerala. The 2nd respondent is the Inspector General of Police. The petitionermoved for impleading the Honourable Minister of Home Affairs,Sri Karunakaran and the District Superintendent of Police, Calicut as additionalrespondents 4 and 5. After hearing parties they too have been impleaded asparties.

8. Respondents have filed counter affidavits individually. The1st respondent, the Secretary to the Government Home Department admitsreceipt of two petitions, one dated 15-6-1976 and another dated 6-8-1976, bythe Home Department. He also admits receipts of a number of petitions sentby the petitioner to the Home Minister, Government of India, and the Presidentof India subsequently forwarded to the Government of Kerala for appropriateaction. The receipt of a similar petition from the petitioner also with a letterfrom Sri Viswanatha Menon to the Home Minister for the Government ofKerala is also admitted. It is said that the copies of these petitions were forwardedto the Inspector General of Police for enquiry into the allegations made therein.It is further said that on 7-1-97 the Inspector General of Police sent a letter tothe Government stating that an enquiry had been conducted into the allegationsmade in the petitions but it was revealed that the petitioner’s son had not beentaken into police custody at any time and that the principal wrote to the petitionerabout the alleged arrest of the petitioner’s son based upon some hearsayinformation. The Inspector General of Police is also said to have informed to

� � �


82

the Government that one Joseph Chali, a student of the Regional EngineeringCollege, had been arrested and detained under the MISA on 8-3-1976 and fromthe said student the police got information about the involvement of oneMuraleedharan a student of the Regional Engineering College and son ofSri K. M. Kannampilly, former Indian Ambassador to Jakarta, and the saidMuraleedharan was arrested on 18-4-1976. It is further said that the InspectorGeneral of Police informed the Government that when Muraleedharan wasquestioned by the police they got information that the petitioner’s son Rajanwas affording facilities and shelter to some of the extremists. But it is said thatby the time that information was received the police could not locate him as, bythat time he had made himself scarce. Based upon this report of the InspectorGeneral of Police which is marked as Ext. X1 dated 7-1-1977 the Governmentof Kerala is said to have sent up a report to the Government of India on thematter. That in spite of several petitions to the Government by the petitionerhe got no communication from the Government at any time is not denied inthe counter affidavit of the first respondent.

9. The Inspector General of Police in a very short counter affidavit deniesthe arrest of Sri Rajan by the Police and the fact of custody by the police. Hestates that Sri Rajan has not been arrested by any police officer of the State. Hefurther mentions that he made enquiries about this matter on the petition sentto Government of India and he submitted a report to the Government.

10. The 3rd respondent, the Deputy Inspector General of Police, CrimeBranch, also avers that the allegation that the petitioner’s son was arrested bythe State Police was untrue. He would say that he had not given any direction toarrest the petitioner’s son and the petitioner’s son had not been arrested by theState Police.

11. Sri K. Karunakaran who was formerly the Minister for Home Affairsand now the Chief Minister of the State has filed a counter affidavit denying theaverments in the affidavit of the petitioner that he told the petitioner on30-3-1976 that his son Rajan had been arrested from his college for involvementin some serious cases and he would do his level best to look into the matter andhelp the petitioner. While averment was made by the petitioner in the affidavitfiled by him to seek impleading of the 4th respondent, the Chief Minister aversthat he never told the petitioner that his son was in police custody at any timeand so far he had no knowledge that the said Rajan had been in police custodyat any time. He admits that he wrote Ext. P3 letter to Sri Viswanatha MenonM.P. but according to him he never admitted that the question of release of

Rajan fhe spokmurder

15th respinto cuthe caspolice oby the Gthe petonwardDuringEnginesome oevidentime. Horder dCollegeshow thWardenby the that hefor queinformwhose

that theof CrimKayannpositioby anyinvolvewho wfurtherpetitionapprehvery saGenerathat the


83

Rajan from custody was under examination. He also denies the averment thathe spoke in public meetings about the petitioner’s son being an accused in anymurder case and kept in police custody for that reason.

12. The District Superintendent of Police, who was impleaded as5th respondent in the original petition, denies having taken the petitioner’s soninto custody at any time. He would say that Sri Rajan was not wanted in any ofthe cases investigated by him and he had not been in the custody of any of thepolice officers. He refers to the two petitions sent by the petitioner and forwardedby the Government and the D.I.G. of Police, C.I.D. and Railways alleging thatthe petitioner’s son had been in the custody of the police from March 1976onwards and praying for his release. He is said to have made a detailed enquiry.During the course of his enquiry he questioned the Principal of the RegionalEngineering College, Sri Bahauddin, the Chief Warden Mr. Srinivasan andsome others. He would say that from such enquiry he found that there was noevidence to show that the petitioner’s son had been arrested by police at anytime. He would say that one Joseph Chali had been arrested in March 1976 byorder dated 8-3-1976. According to him the Principal of the Regional EngineeringCollege whom he contacted told him that the files kept in the college do notshow that he had sent any such letter to the petitioner. But he told him that theWarden of the Hostel informed him that the petitioner’s son had been arrestedby the police. The Warden who was also questioned is said to have told himthat he got the information from one Ramakrishanan who was not availablefor questioning as he was on leave. He would say that Sri Ramakrishnan wasinformed about the alleged arrest of the petitioner’s son by some students,whose identify was not known.

13. The 5th respondent, the Superintendent of Police, further statesthat the petitioner’s son was not arrested in connection with the investigationof Crime No.19 of 1976 of Kayanna Police Station. He himself was present atKayanna investigation camp from 28-2-1976 to 12-3-1976 and so was in aposition to state that Rajan had not been brought for investigation to the campby any police officer. But he says that police knew that the said Rajan wasinvolved in extremist activities from Sri Muraleedharan, a student of the Collegewho was absconding from the college from 16-9-1975. The 5th respondentfurther stated in his affidavit that the result of his enquiries revealed that thepetitioner’s son had absconded from the college early in March 1976 probablyapprehending police action against him when Joseph Chali, a student of thevery same college was arrested. The report by him to the Deputy InspectorGeneral of Police dated 28-12-1976 is marked as Ext. R1. In that he mentionsthat the police obtained information of the involvement of certain students of

� � �


84

the Regional Engineering College in the Naxalite activities leading to the attackon the police station on 29-2-1976 from a source. It is said that enquiries weremade from 1-3-1976 onwards and one student Sri Joseph Chali was interrogatedin detail on the same day. Sri Chali was said to have been subsequently detainedunder MISA on 8-3-1976. It is further said that it was revealed that Rajanafforded facilities to some of the important accused concerned in the KayannaPolice Station attack case to conduct their clandestine meetings and it is alsounderstood that Rajan had arranged shelters to some of the accused who hadabsconded after the occurrence in the said case.

14. We are met with an unusual situation here. Cases that have come upbefore the courts seeking the issue of rule of habeas corpus are those where thecourts had been called upon only to decide the legality or the validity of theorder of detention by the police or others having the custody of the personwho was the subject matter of the habeas corpus petition. We have not beenreferred to any authority nor have we been able to locate any case where the courthad to undertake the task of finding out the truth or otherwise of the plea ofthe detention itself. But such a situation has arisen here. But so long as it is theduty of this court to protect freedom of a citizen and his immunity from illegaldetention we cannot decline to exercise our jurisdiction merely because a disputehas arisen on the issue of the detention. The Supreme Court in Mohd. Hussainv. State of U.P. A.I.R. 1964 S.C. 1625 said that:

‘It is wrong to think that in Habeas Corpus proceedings the court is prohibitedfrom ordering an inquiry into a fact. All procedure is always open to a court which isnot expressly prohibited and no rule of the court has laid down that evidence shallnot be received, if the court requires it. No such absolute rule was brought to outnotice.’

15. It may be appropriate that we refer in this context to the decision ofthe Supreme Court reported in Jage Ram v. Hans Raj A.I.R. 1972 SC.1140. Thatwas an appeal filed by two police officers before the Supreme Court of India forexpunging certain remarks made as to their conduct in the order of the Punjaband Haryana High Court on a habeas corpus petition filed by one Hans RajMidha for the production of his son Prem Prakash Midha who was said tohave been detained illegally by the Central Investigation Agency (C.I.A) StaffKarnal. The complaint of the petitioner there was that his son Prem Prakashwas taken from his house at about 5 P.M. on 5-5-1968 by police officers, that hewas being tortured in the police station and that such brutal torture wascontinuing though there was no record of arrest. On the rule being issued bythe High Court and a Reader of the Court being appointed to search the officeof the C.I.A. Karnal. Prem Prakash was found in the room of the police

stationwith somedicaPrem Pwere alversionthe detkeepinissue. BpetitionhabeascalculaagainstSupremapprecicould bcharactsaid at

‘countrycitizen take sucontrav

WevidenSuprem

1Additiotaking the mapolice c

1(((

against


85

station lying on a gunny carpet spread on the floor with his feet swollen andwith some injuries on his head. As directed by the court he was taken formedical examination and on 13-6-1968 produced in court. The evidence ofPrem Prakash was taken in court and the affidavits of respondents to the writwere also in evidence. The court ultimately found on this evidence that theversion of torture on Prem Prakash was true and also that the confinement ofthe detenue was illegal till 10th May 1968. But since on 10th May an order forkeeping in judicial custody had been passed a writ of habeas corpus did notissue. But all the same the court found in its order on the habeas corpuspetition that the affidavits sworn by the respondents by way of return to thehabeas corpus petition did not represent the true state of affairs and thatcalculated falsehood had been imported in material particulars. It is this findingagainst respondents that was sought to be expunged in the appeal before theSupreme Court. But the Supreme Court found that the High Court had properlyappreciated the evidence and some of the remarks to which exception was takencould be described as unwarranted, unnecessary, or irrelevant nor can they becharacterised as generalisations or of a sweeping nature . Incidentally the courtsaid at paragraph 7 of the judgment thus:

‘In a Habeas Corpus Petition where allegations are made that a citizen of thiscountry is in illegal custody it is the duty of the court to safeguard the freedom of thecitizen which has been guaranteed to him by our Constitution and to immediatelytake such action as would ensure that no person however high or low acts incontravention of the law or in a high handed, arbitrary or illegal manner.’

We are referring to this decision only to indicate that practice of takingevidence in matters of habeas corpus had been noticed in that case by theSupreme Court and that was not disapproved.

16. We however need not go into this question further since learnedAdditional Advocate General Sri T. C. N. Menon submitted that he was nottaking the stand that the court should not embark upon the examination ofthe materials in this case to find whether the plea of Sri Rajan being taken intopolice custody was true or not.

17. The three questions which we may have to consider in this case are:(a) Whether Sri Rajan was taken into police custody on 1-3-1976?(b) Whether Rajan is in police custody at the moment?(c) What relief the court should grant in the circumstances of the case and

against whom?

� � �


86

18. On the question of Rajan being taken into police custody there is afairly good amount of evidence in this case. The Original Petition was filed inthis court on 26th March 1977 which was a Friday. It was moved on the nextsitting on 28th March. The learned Advocate General took notice on behalf ofthe respondents in the petition and the case was posted for showing cause as towhy the application should not be granted. This was so posted to 30-3-1977.On that day the petitioner moved an application for impleading the HonourableChief Minister of the State Sri K. Karunakaran and the District SuperintendentAdditional Advocate General took notice on this petition and the petition wasallowed on 30-3-1977. Counter affidavits by the respondents were filed on4-4-1977 and the case was posted to 6-4-1977 for hearing. On 6-4-1977 thepetitioner filed a reply affidavit. Along with it affidavits of 12 persons were alsofiled, evidently in support of the case of the petitioner that Sri Rajan was takeninto police custody. The explanation offered by petitioner’s counsel Sri EaswaraIyer for filing these affidavits only along with the reply affidavit and also formentioning the fact that the petitioner met the then Home MinisterSri Karunakaran on 10-3-1976 only in the petition for impleading filed on30-3-1977, is that at no time earlier was the petitioner told that his son Rajanwas not in police custody and therefore when he came to this court he could notassume that this would be an issue in the case. Counsel states that the day afterthe petition was moved in this court Sri Karunakaran who is the present ChiefMinister of Kerala, and was earlier the Home Minister, stated on the floor ofthe Assembly of the State that Sri Rajan had never been arrested and this is saidto have been reported in all the papers. Evidently therefore the question whetherSri Rajan had been taken into police custody became an issue then only and it issaid at the hearing that was the reason why the averment that the petitioner hadmet the Chief Minister on 10-3-1976 was made only in the petition dated30th March, 1977. On 30-03-1977 another motion was made by the petitionerand that was for permission to examine the principal of the RegionalEngineering College, Calicut as a witness and on that the court had directed thePrincipal to be examined as a witness to prove the arrest of Rajan, a matter inissue in the case. He was summoned to appear in this Court with all relevantrecords on 5th April 1977 and in the event the summons was not served onhim by that time on 6th April 1977. When the case thus came up for hearing on5th April the Principal of the College was not present as by that time summonsto appear had not been served on him. Counsel for the petitioner offered thedeponents of the 12 affidavits for cross examination on the next day, i.e. on6-4-1977. When the case came up on 6-4-1977 Professor Bahauddin, the Principalof the Regional Engineering College was present pursuant to the summons.

He wacross-etime thcase wasummedeponecross-eexaminhis affihim fothe learcross-ecounsethey ofAdvocsuch crthe cas

1Superin29-2-19in the college1-3-19fact. Ththat onenteredsearchia commChali wfrom thtime, wto a neinside ttaken osome pBranchwas takhe wasInspec


87

He was examined. Nine of the deponents were offered by the petitioner forcross-examination. On the request of the Additional Advocate General fortime their examination was adjourned on the specific understanding that if thecase was not closed on the 7th of April, by which time the court would close forsummer recess, the hearing would be continued on 11-4-1977. Ten of thedeponents of the affidavits who were present on 7-4-1977 were offered forcross-examination by respondent’s counsel on that day and they were cross-examined by him. They are PWs 2 to 11 in the case. The petitioner had swornhis affidavit was available for cross-examination and Sri Easwara Iyer offeredhim for cross-examination by the respondents’ counsel on his affidavit. Butthe learned Additional Advocate General submitted that he did not want tocross-examine the petitioner on the affidavit filed by him. Though petitioner’scounsel submitted that he was ready to cross-examine the respondents in casethey offered themselves for such cross-examination, the learned AdditionalAdvocate General submitted that the respondents were not being offered forsuch cross-examination. Under such circumstances the evidence was closed andthe case was heard on 11-4-1977.

19. It appears from the counter affidavit filed by the DistrictSuperintendent of Police, Kozhikode that on information being received on29-2-1976 about involvement of certain students of the Engineering Collegein the Naxallite activities, enquiries were made among the students of thecollege from 7-3-1976 onwards. That one Joseph Chali was interrogated on1-3-1976 and subsequently detained under MISA on 8-3-1976 is an admittedfact. The case of the petitioner as disclosed from the evidence adduced here isthat on the morning of 1-3-1976 at about 4-30 A.M. some police officersentered the hostel buildings of the Regional Engineering College, went aboutsearching the various rooms for Joseph Chali as well as Rajan, that this createda commotion in the Hostel, that sometime at about 6 or 6-30 A.M. JosephChali was taken out from the Hostel in a van, that Rajan was also taken outfrom the Hostel in the same van, that Rajan was the inmate of D Hostel at thattime, while Chali was an inmate of E Hostel, that they were so taken in the vanto a nearby lodge situated near the poultry farm, that the two boys were takeninside the lodge, that cries were heard from within the lodge, the two boys weretaken out of the lodge after sometime and subsequently Rajan was moved tosome place in a van, that he was seen sitting in the van near the State BankBranch, that he was subsequently seen at Chathamangalam in the van, that hewas taken to Kakkayam Tourist Bangalow, extensibly for interrogation and thathe was seen lying there on a bench tortured by six policemen, including anInspector of Police, wherefrom he was carried away unconscious. It is said that

� � �


88

the petitioner could not have moved this court then for production of Rajan’sbody on the ground of illegal detention on account of the Proclamation ofEmergency and therefore he was desperately moving the State Government aswell as the authorities of the Central Government to get some informationabout his son. But he got none. It is further attempted to be brought out inevidence that the petitioner had met the then Home Minister Sri Karunakaranon 10-3-1976 and complained to him about his plight and the Home Ministerassured to him that he would look into the matter. But nothing happened.The petitioner is said to have repeatedly met the Chief Minister Sri AchuthaMenon who ultimately expressed his helplessness as the matter was one inwhich the Home Minister alone was concerned. It is further said that when thisbecame a matter of popular concern Sri Karunakaran realizing the situation hadto explain this at the recent election meetings in his Constituency as also otherConstituencies. This, in short, is the evidence attempted to be adduced in thiscase.

20. Professor Bahauddin, the Principal of the Regional EngineeringCollege is examined to prove that it was reported to him on 7 A.M. on 1-3-1976by the acting Chief Warden that Rajan and Joseph Chali had been arrested. Awritten report is also said to have been given to him at 9 P.M. that day. Consequenton this Sri Bahauddin sent registered letters on the same day to the parents ofthe two boys informing them of the arrest by the police officials that morning.Sri Bahauddin was summoned to produce the concerned papers. Accordinglyhe has produced the file. In the hearing the Additional Advocate General expresslystated that he is not asking the court to disbelieve Sri Bahauddin but on theother hand whatever was stated by him from his personal knowledge may betaken as true though what he has stated on hearsay information may not beaccepted as true. That, of course, is fair enough. Professor Bahauddin speaks tothe report having been made to him at 7 A.M. on 1-3-1976 about the visit ofthe police officers that morning and about taking Sri Rajan into police custody.He speaks to the report made to him. As to the actual arrest or taking into policecustody he is not a witness nor would he be able to speak to it. He does notpurport to do so. There is no case that Professor Bahauddin has any reason todepose against the respondents or in such a manner as to advance the case ofthe petitioner. Evidently he is an uninterested respectable witness. The studentRajan is said to have been taken from the College premises in the van by about6-30 A.M. on 1-3-1976. The evidence of Sri Bahauddin established the fact thatthe acting Chief Warden reported the matter to him soon thereafter at 7 A.M.Since both the students were Hostel inmates the Principal is seen to haveimmediately contacted the Kunnamangalam Police Station. They informed

him thait. Thocould nboys towrote tby regisone Sriof the Ext. P1file mafrom thknowlethe 7thregister

2witnessThat isafterthfinal yebeen mevidentby themCollegereport to somnot beethe HocustodArts FeCollegeSri Josethe arrWardenof Sri Ron the

2submitmay bemay be


89

him that they had not arrested anybody and they did not know anything aboutit. Though he attempted to contact the Superintendent of Police, Calicut hecould not get him on the telephone. When he went to the Hostel, groups ofboys told him that the two boys were arrested and taken into police custody. Hewrote to the guardians of the boys on the same day and dispatched these lettersby registered post. By way of further enquiry about Rajan the Principal deputedone Sri Abdul Gaffer, at the moment out of India, to the police officers. A copyof the letters sent to Eachara Varier and Paul Chali contained in Ext. P1 file isExt. P1 (a). The dispatch particulars of these letters are shown in the slip in thefile marked Ext. Pl (b). In cross examination the witness concedes that apartfrom the report and what others told him about the arrest he had no personalknowledge about it. The attendance register of the college (final year class) forthe 7th Semester of 1975-76 is marked as Ext. P2. It is seen from the attendanceregister that from 1-3-1976 Rajan had not attended the college.

21. It appears to us that for the appreciation of the evidence of thewitness in the case a proper background is furnished by the evidence of PW 1.That is because it cannot be said that the story of the arrest of Sri. Rajan was anafterthought made up for some ulterior purpose. That Rajan, a student of thefinal year class, had not attended the class form 1-3-1976 and the father hadbeen moving heaven and earth to get the whereabouts of the boy is more thanevident in this case. Even according to the police some information was receivedby them about the involvement of the students of the Regional EngineeringCollege, Calicut in the Naxalite activities on 29-2-1976. It is also said now in thereport of the 5th respondent marked as Ext. R1 that Sri Rajan had given shelterto some persons suspected to be naxalites and in spite of their efforts they havenot been able to find out Rajan. There is no case that Rajan was not present inthe Hostel till 1-3-1976. The evidence is that just before Rajan was taken intocustody he had returned to the Hostel after attending the University D ZoneArts Festival. That on 1-3-1976 the police came to the Regional EngineeringCollege evidently for the purpose of interrogating at least another studentSri Joseph Chali is admitted. By about 7 A.M. the Principal gets the report ofthe arrest of Rajan from none other than Dr. Ramakrishnan the acting ChiefWarden. It is difficult to believe that such a story about the arrest by the policeof Sri Rajan was invented at that time and the groups of boys met the Principalon the same morning to inform him of such a concocted story.

22. None of the witnesses are examined in chief, for petitioner’s counselsubmitted that they having deposed to the facts in their affidavits such evidencemay be accepted and if any examination was desired by the respondents thatmay be done. Therefore the witnesses were cross-examined on the averments

� � �


90

made by them in the affidavits. These witnesses speak to situations at differentperiods of time. PW 2 is a student in the final year class of the RegionalEngineering College and was a student also at the relevant time. he was stayingin the Hostel. PW 3 one Narayanan Nair, is the watchman who was on dutyfrom 10 P.M. on 29-2-1976 to 6 A.M. on 1-3-1976. They are examined to speakto the fact that a group of police officers came to the Hostel and began makingenquiries for Rajan. PW 2 speaks to their making enquiries for Rajan and Chaliand PW 3 speaks to the enquiries made for P. Rajan who was in room No. 144in the D Hostel. PW 3 further swears that he informed Prakash, the Secretary ofthe Hostel, about this, and met Dr. Ramakrishnan the acting Chief Warden toinform him about this. In the sequence of events we must next refer to PW 5.While he was going to the Hostel that morning for his duty he saw Rajan beingtaken to a police tempo van by a Circle Inspector and some constables. PW 4 isthe part time sweeper of the college by name Balasubramoniam. He was onduty on 1-3-1976 and by about 6-30 A.M. when he reached the college he sawtwo vans standing in front of the D Hostel. Near one of them he found aDetective Inspector of the Crime Branch, Sri Sreedharan, a Police Constable,Raghavan Nair, and the driver of the vehicle of the Crime Branch. They werestanding near the van. In one of the vans he is said to have seen both Rajan andChali. The van with these two boys and policemen is said to have proceeded toa lodge nearabout and that it was stopped near the lodge. The two boys weretaken into the lodge and it is said that cries were heard from inside the lodge.After about 15 minutes the boys are said to have been brought outside thelodge. Next the van is seen in front of the State Bank Branch inside the Collegepremises. The van is seen parked. PW 6, the fulltime sweeper of the college, sawthe van parked on the side of the lodge near the State Bank Branch. But at thattime only Rajan was in the van flanked by policemen. PW 7, Koru the mess boy,also speaks to having seen the van parked in front of the Bank Branch in theCollege premises. Rajan alone was seen in the van at that time. PW 7, it maybementioned, was arrested from his house at about 9-30 P.M. by the police on1-3-1976 in connection with Crime No. 19 of 1976, taken to KunnamangalamPolice Station, then to a police camp in Kakkayam, kept in the police camp for12 days and then taken to Maloorkunnom in Chevayoor and was housed in theCannanore Central Jail where he was a detenue till 24-3-1977. He speaks tohaving seen Joseph Chali at Kakkayam camp when he was there. The van seemsto have proceeded further and PW 8, Surendran, saw that van at the place nearChathamangalam. He knew Rajan earlier. The van had been parked near a toddyshop. When he looked into the van he saw Rajan with policemen inside thevan. We have the evidence of PW 9 to speak to what happened to Sri Rajan

thereafby the Cwrong by the taken ttaken tthe saidpolicemAfter soby the SuperinTravelladducethis to

2havingcross-ehappenprotectthat nopositiohim hewitnesshe was of the Branchthe cashouse. not trupromoIt has bof an emthey haevidencincidenthe exadeposithe witany of


91

thereafter. PW 9 is one Rajan running a Typewriting Institute. He was arrestedby the Crime Branch even as early as on 28-2-1976, according to him under thewrong impression that he was associated with Naxalite activities. He was takenby the Crime Branch Police into their custody, was interrogated and next daytaken to a room in Hotel Maharani, was kept there and on 2-3-1976 he wastaken to Kakkayam Travellers Bungalow in a police jeep, dragged to a room inthe said Bungalow and while he was there he saw Rajan being tortured by sixpolicemen, one of whom he knew as Sub Inspector Pulikkodan Narayanan.After some time Rajan became unconscious and he was carried out of that placeby the same individuals. He also speaks to the fact that at that time the DistrictSuperintendent of Police and some of the police officers were present at theTravellers Bungalow. This in short, we may say, is the evidence sought to beadduced by the affidavit filed by these witnesses. We are particularly mentioningthis to show that this is not a case brought out in cross-examination.

23. PW 4, the part time sweeper in the College Hostel who spoke tohaving seen officers in mufti and who could identify them, was reluctant incross-examination to disclose further about this, for he feared something mayhappen to him in the event he deposed against the police. He sought theprotection of the court. The Additional Advocate General assured the courtthat nothing would happen to the witness deposing in the case. PW 4 was in aposition to mention the names of the officers particularly because according tohim he was a witness in a case investigated by the Crime Branch. He was awitness to recovery of a weapon. As such he had been summoned to court andhe was taken in the police van to the court for deposing. Sub Inspector Sreedharanof the Crime Branch, Constable Raghavan Nair and the driver of the CrimeBranch were known to him. The same Sub Inspector had come to investigatethe case in which he was a witness and which was one in the locality of hishouse. No attempt was made to show that the statement of this witness wasnot true. We can find no reason why a witness such as PW 4 should perjure topromote the case of the petitioner, a retired Professor staying far away in Cochin.It has been suggested that by this time the matter had assumed the proportionsof an emotional issue and therefore witnesses may speak even to matters whichthey have not seen. Of course we should exercise extreme care in assessing theirevidence. But this is different from saying that the witnesses are strangers to theincidents spoken to by them. They are liable to commit mistakes in regard tothe exact time the persons they saw and other details, particularly as they aredeposing to a matter more than a year old. But we see no reason to disbelievethe witnesses in this case as nothing has been brought out to indicate that all orany of them have been speaking untruth for any ulterior purpose.

� � �


92

24. We may broadly indicate that what has been attempted by cross-examination of the witnesses is only to show that there is discrepancy as totime, discrepancy as to whether the policemen were in uniform or not andwhether the two boys went in one van or two vans. On carefully going throughthe evidence we find no material discrepancy which would persuade us to rejecttheir evidence. Going through the evidence of the witnesses we find their caseis that the police in mufti searched the room for Rajan and Joseph Chali whowere in two different Hostels. Some of the officers in uniform had also comethere. But they had not engaged themselves in the search. At some point oftime there were two police vans in front of the College. Though the two boyswere taken together from the hostel after visiting the lodge nearby Rajan wastaken by himself in one of the vans. That is the evidence attempted even in theaffidavits filed by these witnesses along with the reply affidavit and these are notmatters brought out by cross examination.

25. It is said by the learned Additional Advocate General that in theaffidavit filed by PW 2 it is said that both Rajan and Chali were taken away in thevan but some of the witnesses speak only to Rajan being taken into the van.Going through the affidavit of PW 2 marked as Ext. P5 along with the replyaffidavit it is seen that what is stated there is not that both Rajan and Chali weretaken simultaneously into the van. In fact they were in two different Hostelsand it is unlikely that they would have been taken simultaneously. According toPW 2, though the persons who took the two boys from the hostel were peoplein mufti, officers in uniform had also come there and he assumed that thosewho took Rajan were police officers because the same set of officers had takenChali also, and Chali was later reported to be arrested. He does not speak to theboys being taken to the van or having seen them getting into the van but speaksto both of them being taken from the hostel premises in the same van. Ofcourse that is the case of the petitioner as reflected in the affidavits of thewitnesses filed. The evidence of PW 3 is challenged on the ground that in hisaffidavit he mentions the group of police officers in plain clothes coming to thehostel and searching in the rooms asking for Rajan, but in cross examinationmentioning that some persons had uniform. But in re-examination the witnessspeaks to the fact that it was the person in mufti who searched the rooms,which is the substance of the affidavit filed by him. He did not say in theaffidavit that the officers in uniform were not there at any time. That they werealso there is consistent with the other evidence in the case. PW 5 speaks to themoment of time when Sri Rajan was taken into the police tempo van and heonly speaks to this fact. That there were police officers at that time is what otherwitnesses have also spoken to and if the witness saw the officers in uniform

actuallyAt thatgone wPW 4 Bboys Rproceevans is to the lwas in availablBy the in the vthem bState Bor threbeen arand latecross-eabout tChali ahe wasproceeChathareason

2to us hicategorcamp, wis not epolice ohe wasknew aone of on thatcase of that hethereafreason conside


93

actually putting Rajan into the van there is nothing wrong with that evidence.At that time there was only one van. After 10 minutes the van is said to havegone west. But he was not asked as to what happened in between that time.PW 4 Balasubramoniam evidently came to the scene at a time when both theboys Rajan and Chali had been put into the same van and the van thereafterproceeded to the lodge. At that time there were two vans. The existence of twovans is quite consistent with the petitioner’s case, for, after the boys were takento the lodge, according to the petitioner’s case, Rajan was separated and he alonewas in the van thereafter. That would mean that the other van must have beenavailable for taking Chali. There is no reason to doubt the veracity of his evidence.By the time PW 6 sees the van in front of the State Bank there was only Rajanin the van and there were three or four policemen in the van, one or two ofthem being in uniform. He did not wait for the van to leave the premises of theState Bank. PW 7 also speaks to having seen the van in the same place with twoor three men inside. It is significant that in spite of his statement that he hadbeen arrested at 9-30 P.M. on 1-3-1976, taken to Kunnamangalam Police Stationand later to the police camp at Kakkayam where he was detained for 12 days, nocross-examination was made about this by the respondents. Evidently his caseabout the detention by police must be true and it was at Kakkayam that he sawChali as spoken to by him. There was no suggestion made to PW 8 as to whyhe was interested in deposing for the petitioner. The van had by that timeproceeded from the State Bank premises further to the place known asChathamangalam and it had been stopped in front of a toddy shop. We see noreason to disbelieve this witness also.

26. We have anxiously gone through the evidence of PW 9, for accordingto us his evidence goes a long way to substantiate the petitioner’s case. He hascategorically stated in his affidavit that he had been taken to the Kakkayamcamp, was there for a number of days and at that time he saw Rajan there. Thereis not even a suggestion in his cross examination that he was not taken by thepolice on 28-2-1976 or that he was not in Kakkayam for the days he mentionedhe was there. The only question that had been asked to him was whether heknew anyone of the 6 people at the Kakkayam T.B. and he said he did knowone of them, Pulikkodan Narayanan. He was also asked whether he saw Rajanon that day, whether he saw Chali, and was also asked why he was arrested. Thecase of this witness that he had been taken to police custody even on 28-2-1976,that he saw Rajan at Kakkayam T.B. and that Rajan was tortured and wasthereafter taken out in an unconscious condition is evidence which we see noreason to disbelieve. Nothing has been shown to us as to why we shouldconsider the evidence of these witnesses as not reliable. The learned Additional

� � �


94

Advocate General, beyond pointing out certain discrepancies in the evidence ofthese witnesses, has not indicated that all these witnesses are clearly perjuring tomatters they have never seen. No attempt has also been made in the crossexamination of these witnesses to suggest such a case. Therefore an overallappreciation of the oral evidence leads us to the conclusion that Rajan was takenon the morning of 1-3-1976 from the Regional Engineering College by thepolice, was seen later under the police custody at Kakkayam T.B. being torturedby six policemen including Pulikkodan Narayanan and therefore it is establishedthat till that point of time he was in police custody.

27. There is another point attempted to be proved by the petitioner.Sri Karunakran was a candidate from the Mala constituency during the recentAssembly elections. The petitioner, Sri Eachara Varier, is said to have publisheda pamphlet appealing to the public about the cause of his son. It is said that tocounter the popular appeal of this pamphlet and consequent adverse reactionon the election prospects, Sri Karunakaran had to advert to the matter duringhis election campaign. At the ‘samapana rally’ of the election campaign he issaid to have admitted the detention of Sri Rajan, and explained it to be becausehe was a member of a banned organisation. PW 10 and PW 11 are two personswho are said to have heard the speech. Their cross-examination indicates thatthe answer to their evidence is that they are interested persons as they belong tothe politically opposite camp. That by itself may not be sufficient to discredittheir evidence. But we are not basing our decision on the evidence of thesewitnesses for another reason. If we believe the case that Sri K. Karunakaran, thethen Home Minister, admitted the detention of Sri Rajan, that by itself wouldbe sufficient to allow the petition. We would base our conclusion on the evidenceof the witnesses in this case who speak first hand rather than what is said to beadmitted especially when that is refuted. So in the case with the Ext. P3 letter towhich we will advert in due course.

28. The petitioner in this case avers in his affidavit of 30-3-1977 that hemet Sri Karunakaran, the then Home Minister, on 10-3-1976 at the ManmohanPalace at Trivandrum and Sri Karunakaran told him that his son Rajan had beenarrested from the College for involvement in some serious case and he woulddo his level best to look into the matter and help the petitioner. He would alsosay that he later met Sri A. K. Antony, K.P.C.C. President, and a former studentof the Maharaja’s College, on the 4th of January, 1977 and on the 2nd ofFebruary, 1977 and Sri Antony assured him that Rajan was alive and in custodyand he would see the Home Minister in this regard. In the counter affidavitfiled by Sri Karunakaran reference is made to the averment of the petitioner.What is stated in reply is this:

‘petitionfor invomatter athat histhat the

Wfor onethe ave10th Mpurposwhat thitself whe gavaffidavBut at tit was smeetinarrest othe datdate ancountementiosomethAdvochearinghearingthe pranote wlook init is see

‘AallegatioHome Min connis absoluin his cothe peti


95

‘The allegation made in paragraph 2 of the additional affidavit that I told thepetitioner on 10th March 1976 that his son Rajan had been arrested from his collegefor involvement in some serious cases and he would do his level best to look into thematter and help the petitioner is absolutely incorrect. I have never told the petitionerthat his son Rajan was in police custody at any time, and so far, I have no knowledgethat the said Rajan has been in police custody at any time.’

We regret to say that this is not meeting the point raised by the petitioner,for one would like a direct answer – particularly in view of the seriousness ofthe averment – as to whether the petitioner did meet Sri K. Karunakaran on10th March, 1976. If he did meet him it would have been necessarily for thepurpose of complaining about the disappearance of his son and more thanwhat the reply of Sri Karunakaran was, the fact of meeting Sri Karunakaranitself would be relevant. Sri Karunakaran could also have then said what replyhe gave to the petitioner. One would be tempted to read from the counteraffidavit that the case is that the petitioner had not met the then Home Minister.But at the hearing when we put this question specifically to Sri T. C. N. Menon,it was submitted that Sri Karunakaran was not denying the fact of the petitionermeeting him, but he was only denying the case that he admitted about thearrest of Sri Rajan. Counsel would also say that he is also not admitting aboutthe date for Sri Karunakaran is not sure of it. One may not remember on whatdate any visitor met him. But we would have been happy to find the case in thecounter affidavit that though the petitioner met him sometime he did notmention to the petitioner that Rajan was in police custody but mentionedsomething also. Though this was what was submitted by the learned AdditionalAdvocate General we are surprised to find later a different stand taken in thehearing note submitted by the Additional Advocate General at the hearing. Thehearing note did not come at our instance. In fact we do not normally encouragethe practice of filing hearing notes. When the case was being heard the hearingnote was filed by the learned Additional Advocate General requesting us tolook into the notes before disposing of the case On going through the notesit is seen stated:

‘Another important aspect which may be dealt with here is the petitioner’sallegation that he met the then Home Minister, Kerala on 10-3-1976 and then theHome Minister told him that the petitioner’s son had been taken into police custodyin connection with a serious criminal case. I would like to submit that this allegationis absolutely unfounded. Apart from the categorical denial of the then Home Ministerin his counter affidavit filed before this Court, the entirety of the circumstances andthe petitioner’s conduct shows that this allegation cannot be true.’

� � �


96

We assume that in view of what was stated by the learned AdditionalAdvocate General before this court he is not pursuing this stand taken to hisnotes. If it is admitted that the petitioner met Sri Karunakaran on 10-3-1976 orsome other day at about that time and then representation was made toSri Karunakaran if the answer was different from what is stated by the petitionerthat should have been mentioned in the counter affidavit. Whatever that be wecannot fail to give credence to the petitioner’s case that he met Sri Karunakaranto represent about his grievance and evidently that must have been either on10-3-1976 or somewhere about that time. It is more so when the petitioner hasoffered himself for cross-examination on his affidavit and the learned AdditionalAdvocate General said that he does not desire to cross examine him.

29. It has come out that repeated representations made to the Governmentof Kerala were not of any use to the petitioner. He was not even shown thecourtesy of an acknowledgment. To the Home Secretary he is said to have sentrepresentations on 15-6-1976 by registered post, on 1-7-1976 and yet anotheron 6-8-1976. Mention is made in the counter affidavit of the 1st respondentthat two unsigned petitions one dated 15-6-1976 and another dated 6-8-1976,were received in the Home Department. There is no denial that the petitiondated 1-7-1976 was not received or that it was not signed. It appears that thecase is that no action was taken on the petitions because they were unsigned.But it is seen that the petition dated 15-6-1976 is received, numbered and someaction taken thereon, while not even any any initials are seen on the petitiondated 6-8-1976. Anyhow it is not necessary to go into this further. It is onlywhen representations made by the petitioner to the Members of Parliament,Home Minister of Government of India and President of India were forwardedto the State Government that the necessity was felt for sending a report to theCentral Government and the report Ext. X1 was obtained in that context. It isevidently based upon the report of the District Superintendent of Police,Kozhikode. A copy of that report was filed by him along with his counteraffidavit marked Ext. R1. That shows the indifferent and careless manner inwhich an enquiry is said to have been conducted. In that report it was mentionedthat the principal could not trace out the office copy of the communicationfrom the college office. The background materials based on which he wrote toSri Eachara Varier were also said to have been not available at the college office.Evidently the reference is to Ext. P1 file. The Principal categorically stated thatthe police officers did not question him about the letters he had written andabout the report to the Governing Body and also to the Ministry of Education.Evidently therefore no serious attempt was made to look into this matter.

3on 10-3significsubseqseveral and thrMinisteMenonon 1st Mconnecthe Hoaction wthe factthat Rahad beeintimatwhich tnot wh“prasthto rule under cthe expdecisiothe conwith thSecretano actioSecretarepresewere fothe pet10-9-1respondated 1forwarGovernthe repSri Karto be fo


97

30. By itself the question whether the petitioner met the Home Ministeron 10-3-1976 to represent about the disappearance of his son may not be verysignificant. But that becomes relevant as background material to assess thesubsequent conduct of the Home Minister. It could possibly be said that theseveral representations received by the Home Secretary direct from the petitionerand through the Central Government did not come to the notice of the HomeMinister. But the representation sent along with the letter of Sri ViswanathaMenon did come to his notice. The reply Ext. P1 is signed by him personally. Ifon 1st March, 1976 or thereafter the petitioner had met the Home Minister inconnection with the controversy and the issue had not been closed for months,the Home Minister would have been, in the normal course, able to say that noaction was called for as Rajan was not in custody. Ext. P3 is at least evidence ofthe fact that even as late as in December, 1976 the State or its officers had no casethat Rajan had not been taken into custody, though the Home Minister himselfhad been contacted soon after 1-3-1976. Whether by Ext. P3 the Home Ministerintimated that the matter of release was under consideration is a question onwhich there is keen controversy. For the Home Minister it is said that this wasnot what was meant. Though plainly read this is what appears from the words“prasthutha karyam” [“the said matter”] in the Ext. P3 letter. We do not wantto rule out the possibility that what was meant was only that the petition wasunder consideration. If at all we err in this, we would like to err so as to acceptthe explanation of the author of the letter. Moreover we would like to base ourdecision on surer grounds and not on the construction of Ext. P3 letter. Butthe conduct of all those who dealt with and who were responsible for dealingwith the successive representations of the petitioner received by the HomeSecretary and the Home Minister is callous, if not highly suspicious. Thoughno action seems to have been initiated on representations received by the HomeSecretary directly from the petitioner, it had to be a different story whenrepresentations made by Members of Parliament to the Central Governmentwere forwarded to the 1st respondent. Sri A. K. Gopalan’s letter together withthe petitioner’s representation is seen forwarded to the 1st respondent on10-9-1976. Thereupon this was sent by the 1st respondent to the 2ndrespondent, the Inspector General of Police, for his remarks. This was by letterdated 17-9-1976. A similar representation from M. K. Krishnan, M.P. wasforwarded to the 1st respondent by the Home Ministry of the UnionGovernment on 13-9-1976. It was then that Viswanatha Menon, M.P. forwardedthe representation of the petitioner along with his letter to the Home MinisterSri Karunakaran along with his letter dated 19-9-1976. That again was directedto be forwarded to the 2nd respondent for enquiry and necessary action. The

� � �


98

Inspector General of Police seems to have sent up no report, so much so thathe had to be reminded by letter dated 11-10-1976. On 22-10-1976 the InspectorGeneral seems to have informed the 1st respondent that the matter was undercorrespondence with the D.I.G., C.I.D. and Railways and the report was awaited.In the meanwhile Sri Viswanatha Menon complained to the Home Minister byhis letter dated 5-11-1976 that his earlier letter had not even been acknowledged.Possibly it was because of this reminder that Ext. P3 was sent nearly a monthlater. The Inspector General of Police was again reminded by the 1st respondentfor the report by his letter dated 11-12-1976. The 2nd respondent in his turnwrote to the Deputy Inspector General of Police, Railways and C.I.D., remindinghim that the report be sent. The Deputy Inspector General of Police, Railwaysand C.I.D. replied to the Inspector General of Police, that the report had beencalled for from the Superintendent of Police, Kozhikode and that was notreceived and hence was being reminded. Then comes the report of theSuperintendent of Police, Kozhikode already adverted to elsewhere in thisJudgment. Nothing but a casual enquiry seems to have been made. But everyofficer concerned seems to have been quite satisfied. They were evidently moreinterested in some report to be forwarded to the Union Government than inthe report itself. None seems to have exercised himself on the correctness oradequacy of the report. The inordinate delay in setting a report, the casualmanner in which the report was prepared, and the indifference with which itwas considered by those through whose hands it passed need not be particularlycommented. We are afraid it is nothing but a general reflection of an attitude ofindifference to such issues relating to liberty and freedom of the citizen, and itmust be a matter of great concern particularly because at the relevant period thecitizen had no protection from court but had depended on the good sense andfairness of the executive.

31. Though all the respondents in this case have filed counter affidavitsrespondents 1 to 4 do not purport to speak on the issue before us from theirpersonal knowledge. They were not in position to say from first-hand knowledgethat Sri Rajan was not taken into police custody. The 5th respondent swearsthat he was present throughout in the Kakkayam Tourist Bungalow and thatRajan had not been taken there. We are not impressed with his statement. Wehave commented elsewhere in this judgment about the report prepared by himon the matter of disappearance of Rajan, a copy of which is filed along with hiscounter affidavit. We have, on the evidence of Professor Bahauddin, foundthat Ext. P1 file which was available was never sought by the police officers whoconducted the enquiry and if so to say that background material was not availableas seen stated in the report of the 5th respondent is nothing but dishonest.

Even aSuperinhave chTouristresponRajan w

3have nothe serthe Hothe Stawhereain gettithe prethe pleathe stuwhat, iWe woup by S

3that it questiothis Conot imwrit. Whope ththe cas

3the petEnginetaken tothat pa

3be in thinto curememor deteadverse


99

Even after this evidence came into the case, Sri Lakshmana, the DistrictSuperintendent of Police had not offered himself for cross- examination. Wehave chosen to accept the evidence PW 9 who saw Rajan in the KakkayamTourist Bungalow. In these circumstances the counter affidavits filed by therespondents in this case are of no assistance to them in meeting the case thatRajan was taken into custody by the police on 1-3-1976.

32. It may not be out of place to point out that the counter affidavitshave not been of much assistance to us also. Taking into account the gravity andthe seriousness of the case we would have expected the counter affidavits ofthe Home Secretary or the then Home Minister to detail all the steps taken bythe State Government in the matter of enquiry into complaints relating to thewhereabouts of Sri Rajan. We would have expected an explanation for the delayin getting a report. We would have expected the affidavit of Sri Karunakaran,the present Chief Minister also to be more categorical, particularly in answeringthe plea that the petitioner met him on 10-3-1976, soon after the date on whichthe student is said to have been arrested. We would also have liked to knowwhat, if any, was his response, if it was not that he would look into the matter.We would naturally have been anxious to know whether there was any followup by Sri Karunakaran. We leave the matter of the counter affidavits at that.

33. At the hearing the learned Additional Advocate General submittedthat it was proposed to appoint a Commission of Enquiry to go into thisquestion. The issue arose long ago and it was only after the petitioner movedthis Court that any such idea of appointing a Commission has arisen. We arenot impressed by this offer. That apart, that would not be an answer to thiswrit. We cannot abdicate our function to adjudicate on this application in thehope that Government may in due course set about finding about the truth ofthe case. We are constrained to decide this case on the evidence before us.

34. From what we have discussed above, we find that Sri P. Rajan, son ofthe petitioner, was taken into custody from the premises of the RegionalEngineering College Hostel, Calicut on the morning of 1-3-1976, that he wastaken to Kakkayam Tourist Bungalow and was seen there on 2-3-1976. Thereforethat part of the case stands proved.

35. The next question is whether it is shown that Sri Rajan continues tobe in the police custody. If he does not, even if we find that he was once takeninto custody we may not be able to issue any writ to the respondents. We doremember that a writ of habeas corpus is purely remedial and ‘carries no punitiveor deterrent force, save in so far as the authorities may be embarrassed byadverse publicity’. But the question whether Sri Rajan is in police custody now

� � �


100

is a matter for investigation. Now that we have found that he was taken intopolice custody normally he should be deemed to continue in such custodyunless otherwise shown. Of course it is open to the respondents to show thathe is no longer in such custody by reason of his having been released or hehaving absconded or having died in police custody. This is a pleading which therespondents should make in reply to the rule when once the fact of the policetaking Sri Rajan into custody is either admitted or proved. But unfortunatelythe respondents have disabled themselves from pleading so or proving it bythe stand they have taken. If we are called upon to decide one way or the otheras we are, normally the presumption that Rajan continues to be in police custodyhas necessarily to be drawn by us. We have necessarily to notice the peculiarcircumstances under which we come to the conclusion for the purpose of thispetition that Sri Rajan is in the custody of the police. In moulding the relief inthis case we will have to bear in mind this unique circumstance.

36. The very difficult part of our decision-making process in this case isthe determination of the remedy that should be granted to the petitioner in thecircumstances indicated. That a writ of habeas corpus need not be equated withits counterpart in England, though analogy may be drawn from it, is a principlewell established. The power of the High Court to mould relief to suit therequirements has been recognised by the Supreme Court of India in DwarkaNath v. Income Tax Officer, Special Circle D Ward, Kanpur and another (AIR 1966SC. 81). The Court said:

‘............... but the scope of those writs also is widened by the use of theexpression ‘nature’, for the said expression does not equate the writs that can beissued in India with those in England, but only draws an analogy from them. Thatapart, High Courts can also issue directions, orders or writs other than the prerogativewrits. It enables the High Court to mould the reliefs to meet the peculiar andcomplicated requirements of this country. Any attempt to equate the scope of thepower of the High Court under Article 226 of the Constitution with that of theEnglish Courts to issue prerogative writs is to introduce the unnecessary proceduralrestrictions grown over the years in a comparatively small country like England witha unitary form of Government to a vast country like India functioning under afederal structure.’

37. While discussing the relief that should be granted in this case it willbe profitable to advert to a decision of the House of Lords in Thomas JohnBarnardo v. Harry Ford (1892 A C. page 326.) That was a case where on anapplication by the mother for a writ of habeas corpus in respect of her childdirected to the head of the institution in which the child had been placed, itappeared that the child had been handed over to another person to be taken to

CanadadirecteconfirmAppealwas entmore fpolice cwould bby the police ocase noby the evalues not satexplanat presliberty find as of the Swe willto exerAdditioresponresponimpresactionsauthorrememof humpetitionof this son in evidenpresumhave cosaid earfor whato be is


101

Canada without the authority from the mother. The Queen’s Bench Divisiondirected the issue of a writ in the circumstances and the Court of Appealconfirmed it. The House of Lords confirmed the decision of the Court ofAppeal holding that the writ ought to issue on the ground that the applicantwas entitled to require a return made to the writ in order that the facts might bemore fully investigated. Having found that the petitioner’s son was taken intopolice custody and has not yet been released or accounted for by the police wewould be distressed at leaving the matter there merely because of the affirmationby the respondents that the boy is not with them under the custody of anypolice officer in the State. If in spite of the facts that have come to light in thiscase no consequences follow it may lead to continued use of unfettered powersby the executive and especially the police which may ultimately erode the basicvalues on which the democratic way of life in this country is founded. If we arenot satisfied about the answer by the respondents particularly because noexplanation is even attempted as to how they dealt with Rajan and where he isat present we should be able to deal with the matter. Personal freedom andliberty is the most cherished fundamental right of an individual and when wefind as in this case that the authorities who have the backing of the police forceof the State have infringed that freedom by taking a person into illegal custodywe will not be satisfied unless it is shown that it is not possible for this Courtto exercise its power to set the person at liberty. The very vehement plea by theAdditional Advocate General that any direction would result in finding therespondents guilty of something for which they are not shown to be personallyresponsible and therefore we should desist from issuing any writ does notimpress us at all. We repeat that our objective is not to impose any punitiveactions for the improper conduct of any official but invoke and exercise theauthority placed in this Court to protect the citizens’ freedom, solemnlyremembering the obligation of the Higher Judiciary of the land to act as sentinelsof human liberty whenever and wherever there is serious threat to it. Thepetitioner’s grievance is genuine. As a distressed father he invoked the powersof this Court. to command whoever is in custody to direct production of hisson in this Court so that he may be released. Having positively found on theevidence that Sri Rajan has been taken into police custody and on thepresumption that unless it is shown that the custody came to an end it wouldhave continued with the police, we cannot but grant relief in this case. But as wesaid earlier we shall not foreclose the opportunity of the State to make amendsfor what it should have done earlier. What we have in mind by way of directionto be issued in this case would, we hope, achieve this object.

� � �


102

38. Lastly, Sri T. C. N. Menon, the learned Additional Advocate Generalurged that if some police officers misconducted themselves by taking intopolice custody any person without authority and kept him in police custody forthe purpose of interrogation that will certainly call for stern action against suchofficers but would not be sufficient to issue a writ against the superior officerswho are not directly responsible for the illegal detention. We are afraid this isoversimplification of the issue. The police officers taking a student from acollege hostel for the purpose of interrogation possibly at places designed forthis purpose in connection with investigation of cases are acting in their role aspolice officers. It is more so when, in spite of notice of the State being broughtto this situation, nothing has been done to disapprove of such action. If whatis alleged in this case is true—we have found it to be so—it is only a symptomof a disease. It would not be possible under such circumstances for any personseeking a writ of habeas corpus to pinpoint the officer who has taken theperson into police custody. When the fact is that officers using police power ofthe State take persons into custody and deal with them as if such custody isrequired for the purpose of interrogation, it is not necessary that the petitionershould show which officer has the custody of the person at the moment. Tosay otherwise would be to unreasonably limit the doctrine of habeas corpusand deny the legitimate exercise of the function of this Court. The belatedattempt made by the learned Additional Advocate General at the hearing toassign the blame on some overzealous police officers does not impress us assufficient to warrant refusal of relief to the petitioner for that reason. It is notas we have no material in this case to indicate the police officers who could besaid to be involved in the taking of Rajan into police custody. PW 4 hadparticularly identified the Crime Branch Inspector Sreedharan and the policeconstable who were on the scene when Rajan was taken into the van. Thepresence of Pulikkodan Narayanan at the Kakkayam Tourist Bungalow whenRajan was seen to be under restraint and was being tortured has also beenspoken to. The presence of Superintendent of Police Sri Lakshmana at KakkayamTourist Bungalow at the time when Sri Rajan was being put on torture is alsospoken to by PW 9 and we have accepted his evidence. Maybe if we are concernedwith pinning the responsibility on one officer or the other, this evidence mayhave to be used. But this is not relevant because the question here is who is incustody of Rajan at the moment. If Rajan came into police custody in whosecustody he is at the moment is a matter which must be peculiarly within theknowledge of respondents in this case and in such a case the writ must issueagainst those persons who are in a position to give effective compliance to thewrit.

3Corpu

‘person to seveperson to the lwhom t

Trespondargume

IK.B. 36of writ arrestehave bapplicacontroview ththere wthe Goauthor O’Brie

‘real issumay be it be reathe ord

4College1976. Iwas coresponinvestigto the init is onthe Deof the cofficer


103

39. We may refer to a passage from the treatise on the Law of HabeasCorpus by R. J. Sharpe at page 170. The learned author says:

‘The general rule is that the writ of habeas corpus should be directed to theperson who has physical custody of the prisoner. The writ may, however, be directedto several persons where there is some doubt as to who has custody or, to someperson other than the gaoler or actual custodian of the party detained. With respectto the latter possibility, problems may occur where it is doubted that the person towhom the writ is directed has sufficient custody or control of the prisoner.

This issue will usually arise where it is sought to make a minister of the crownrespondent to the writ. This has been done in a large number of cases without anyargument or comment.’

In King v. Secretary of State for Home Affairs, Ex. Parte O’Brien (1923 (2)K.B. 361) the Court of Appeal in England considered the issue of an applicationof writ of habeas corpus to the Secretary of State when the applicant had beenarrested and had been deported to Dublin. His case was that he should nothave been restrained and therefore should be released. By surrendering theapplicant to the Free State Government the Secretary of State had lost the legalcontrol of his body. But notwithstanding this the Court of Appeal took theview that the application was properly made against the Secretary of State asthere was sufficient doubt whether he had not, in view of his agreement withthe Government, exercised de-facto control over the applicant’s detention. Theauthor to whom reference was made earlier, Mr. R. J. Sharpe commenting onO’Brien’s case remarks thus:

‘The principle established in the O’Brien’s case is a sound one. It identifies thereal issue as being that of control so that the Court’s order will be effective. The testmay be stated as follows: if an order of discharge is made but not carried out, wouldit be reasonable to hold the prospective respondent to account for failure to implementthe order?’

40. It is not disputed that the police visited the Regional EngineeringCollege to interrogate the students in connection with the Crime No. 19 of1976. In paragraph 5 of Ext. R1 it is admitted that the investigation of the casewas conducted jointly by the Crime Branch and the local police and the 5threspondent was present throughout from 28-2-1976 to 12-3-1976 at theinvestigation camp at Kakkayam. His statement that Sri Rajan was not broughtto the investigation camp cannot, as we have already found, be believed. Thereforeit is only natural that the writ is to issue to him as well as the 3rd respondent,the Deputy Inspector General of Police who was in-charge of the investigationof the case on behalf of the Crime Branch. Since it is not ascertained as to whichofficer of police or which station of the police is in custody of Rajan now it

� � �


104

cannot be said that the writ cannot be issued to the Inspector General of Police.It would be only appropriate in the circumstance of the case that the Secretary,Home Affairs and the Chief Minister are also those to whom the writ is directedin the context of what we have said earlier. In the circumstances we think that inorder to obtain compliance the writ should be issued to respondents 1 to 5.

41. We now come to the course to be adopted in this case. It is difficult tobelieve that any serious notice had been taken of the petitioner’s complaint atany earlier stage. That it has been brought to the notice of Sri Karunakaran, thethen Home Minister, cannot be in doubt. There is some evidence disclosed toshow that after the relaxation of the emergency the issue has become ratherserious, particularly among the student population. We are referring to theresolution passed by the Calicut Engineering College Union protesting againstthe statement of Sri Karunakaran that Rajan has not been taken into custody.Possibly as a result of this or possibly as a result of this petition there is an offerby the Additional Advocate General that a Commission of Enquiry will beappointed soon after the decision of this case to go into the truth or otherwiseof the arrest of Sri Rajan. As to the truth of that we have already found. Ifhonestly the Government is not in a position to tell the Court the whereaboutsof Rajan it is highly regrettable. There should no doubt be sincere anxiety tobring to book those responsible, but more than that it should be to ascertainthe whereabouts of Rajan and if he is not available to make it known to theparents what happened to him after he was taken into police custody. Whetherhe is still in police custody and if not, how such custody came to an end, has tobe found out. We do not feel that any such honest anxiety is reflected in theoffer to appoint a Commission under the Commission of Enquiries Act. Weknow that failure to comply with the direction to produce Sri Rajan may resultin the respondents being held guilty of contempt. But our primary concern isto grant effective relief in this case if that would be possible.

42. We hereby issue a writ of habeas corpus to the respondents directingthem to produce Sri Rajan in this Court on the 21st of April 1977.

43. If, for any reason the respondents think that they will not be able toproduce the said Sri Rajan on that day their counsel may file a Memo submittingthis information before the Registrar of the High Court on 19th April, 1977 inwhich case the case will stand posted to 23-5-1977, the date of re-opening ofthe Courts after the midsummer recess. On that day the respondents mayfurnish to the Court detailed information as to the steps taken by the respondentsto comply with the order of this Court, and particularly to locate Sri Rajan.Thereupon it will be open to this Court to pass further orders on this petition

and to tthat weprecedobject procedwould

4with thwas drresponofficerpunish

Cparties.

Khalid

Iproperlearnedevidenc

2shouldaccouncase in

3made dgrief-stState anCourt disapptask, anof the never tmatter

4Collegeby the p


105

and to that extent this order need not be taken to have closed the case. We knowthat we are adopting a very unusual procedure for which there is no parallel orprecedent. But our power to do so cannot be in question, for, it is to enforce theobject of finding out the truth and giving relief that we are adopting thisprocedure. We cannot think of a better device by which the Court’s consciencewould be satisfied.

43 (a). It is unfortunate that the respondents have not viewed the matterwith the sense of responsibility expected of them at least when their attentionwas drawn to the serious situation. We once again reiterate that suchresponsibility cannot be disowned as if it is some stray act of some policeofficers somewhere. We do fervently hope that the guilty would meet withpunishment though it is not our province to impose any.

Costs incurred in this petition so far will be borne by the respectiveparties.

Khalid J: —

In view of the importance and unique nature of this case, I think itproper to add a few lines to what has fallen from my learned brother. Mylearned brother has in his judgment just pronounced dealt with the facts andevidence in the case in great detail. I therefore refrain from repeating the same.

2. This petition poses a simple question, of which the solution alsoshould have been simple. But the solution has been rendered difficult onaccount of the unhelpful attitude of the respondents. What is involved in thiscase in more a human problem than a legal one.

3. A heart-broken father, with his wife mentally deranged, with his homemade desolate by the disappearance of his only son, with his two daughtersgrief-stricken over this tragedy, has, after approaching the high dignitaries of theState and the Centre, taken refuge in this Court as a last resort requesting thisCourt to exercise its sacred duty to cause the production of his son whodisappeared from 1-3-1976. If the respondents had assisted us in this difficulttask, and helped us to get at the truth, our task would have been easy. In viewof the rigid stand taken by the respondents that Rajan the petitioner’s son, wasnever taken into custody by the police, we had necessarily to probe into thematter further by taking evidence.

4. According to the petitioner, the Principal of the Regional EngineeringCollege informed him by a registered letter that his son was taken into custodyby the police on 1-3-1976. Ever since, he has been petitioning to several important

� � �


106

persons, going about the various jails in the State, and approaching personshighly placed in life, to ascertain the whereabouts of his son. In the affidavitfiled in support of the original petition and in the reply affidavit he has giventhe various details which culminated in the filing of this petition.

5. In the counter affidavits filed by the respondents, the stand taken isthat Rajan was never taken into custody. The counter affidavits and the documentsfiled along with these affidavits have been closely scrutinised by me. I havepainfully to observe that the respondents have tried to hide the truth from thisCourt. I am emboldened to say so on the affidavits filed by disinterestedpersons and their oral evidence.

6. The silver lining in this unhappy case is the evidence of the Principal.He has unequivocally and in clear terms spoken about the fact that he knew inthe early hours of 1-3-1976 that Rajan was taken into custody by the police.This is evidenced by the registered letter sent by him to the petitioner. He hasproved the copy of the letter. He also deposed that he informed the governingbody of the College and the Central Education Ministry about this matter.There has not been any challenge against his evidence. The learned AdditionalAdvocate General during his submissions at the bar conceded that the evidenceof the Principal has to be accepted in toto. The only contention raised by himwas that the information obtained by the Principal regarding the taking intocustody of Rajan was from others who have not been examined. In otherwords, the contention is that the evidence of the principal cannot be said to bedirect evidence about the taking into custody of Rajan. I have no hesitation toreject this plea. On no account can the evidence of the Principal be ignored insupport of the plea that Rajan was taken into custody on 1-3-1976. The life ofRajan, or for that matter of any citizen of this country, is too precious to bedecided on a technical plea based on the principle of hearsay evidence. At a timewhen nobody was interested in fabricating any false case, the Principal has sentthis letter intimating the petitioner about the fact that his son was taken intocustody. This piece of evidence has all the solemnity about it and no argumentwill be of any avail to reject this evidence.

7. Evidence about the disappearance of Rajan is given by other witnessesalso. They are PWs 2 to 10. A close scrutiny of their evidence clearly shows thaton 1-3-1976 Rajan was taken into custody. Their credibility has not beenchallenged. All that the learned Additional Advocate General submitted regardingtheir evidence is that their evidence is not consistent and is full of contradictionsand therefore cannot be made the basis for a conclusion that Rajan was takeninto custody on 1-3-1976. A very minute analysis of the evidence may indicate

that thcame inconsand thathese wagainsthave githe casaway th

8personwas tak

9reasonseen oresponescape continuhas nec

1the deteffectivState Csubmitexaminrespongettingtake shto takebehalf others responthe bacwhen itconsidcontentruth th


107

that there is some discrepancy regarding the identity of the policemen whocame and regarding their apparel. The discrepancies, if any, are onlyinconsequential. The evidence of these witnesses is conclusive on one aspect,and that is, Rajan was taken into custody on that day. It was not suggested thatthese witnesses were perjuring or that these witnesses have any particular biasagainst the respondents. The only submission made before us was that theyhave given an exaggerated version in view of their emotional involvement inthe case. Even granting this submission to be well-founded, this cannot takeaway the effect of their evidence that on 1-3-1976 Rajan was taken into custody.

8. We are not interested in this case to find out the guilt of any particularperson. We are only interested in this case to find out the truth whether Rajanwas taken into custody on 1-3-1976.

9. The evidence of these witnesses taken as a whole proves beyondreasonable doubt that Rajan was taken into custody on 1-3-1976. He was lastseen on 2-3-1976 being tortured and taken in an unconscious state. Therespondents have no case that he was either released or that he made good hisescape or that he has left this world. The presumption therefore is that hecontinues to be in the custody of the police. On this finding, therefore, a writhas necessarily to issue.

10. If the respondents had taken this Court into confidence and given allthe details truly and correctly, we would have been in a better position to pass aneffective order. The petitioner tendered himself for cross examination. TheState Counsel did not want to cross-examine him. The petitioner’s counselsubmitted that if all or any of the respondents were tendered for cross-examination he was willing to do so. We would have been happy if therespondents had made themselves available before this Court to aid us ingetting at the truth. But that was not to be. At any rate the respondents cannottake shelter under the specious plea that it is outside the domain of this Courtto take evidence in a case like this. Some of the affidavits filed in this case onbehalf of the respondents have not been sufficiently communicative and someothers are incorrect on facts. The statement in the affidavits of the 1st and 5threspondents that the Principal did not have the letter sent to the petitioner andthe back papers is a reckless and irresponsible one, almost bordering on untruthwhen it is read along with the evidence of PW 1. Since these affidavits have beenconsidered at length by my learned brother, I err on the side of brevity andcontent myself by observing that there has been more an attempt at suppressingtruth than in divulging it.

� � �


108

11. The most difficult aspect of the case has been the nature of the orderto be passed in this case. We have spent anxious hours considering about thisaspect of the case. We will be abdicating our function if we do not, on thefinding that Rajan was taken into custody on 1-3-1976 and continues to be insuch custody, issue a writ of habeas corpus for production of Rajan, thepetitioner’s son. In view of the peculiar circumstances of this case, I respectfullyagree with my learned brother to the form of the order to be passed in this case.


From the tears of a father’s pen comes an eloquent, moving andremarkable statement on cruelty, courage, and enduring hope.Professor Eachara Varier describes his desperate and ultimately

unsuccessful attempts to get his son out of a police camp where he istaken one morning for no reason. The camp is a place where therules of life and death are very different to the rest of the world. It isa place where a few officers have absolute power to decide who toarrest, how to arrest them, how to torture them, when to kill them,and how to dispose of their dead bodies. Above them are the seniorpolice officers, politicians and bureaucrats who must hide the truthfrom the families of victims and wider society. And then there is thefather who struggles against them all…

Which is denser—the pain of the sonat the death of his father or the painof the father at the death of his son?

Memories of a father brings back many poignant memories to me of thetraumas that I suffered as a member of one of Sri Lanka’s DisappearancesCommissions in the nineties, when fathers and mothers came before us,asking us for justice on behalf of their disappeared sons and daughters. Ihear their cries still echoing in my ears. When will these pleas be heard inall their sadness in India, Sri Lanka and countless other countries in whichcitizens have been victimised?

Dr Jayantha de Almeida GuneratneLaw Commissioner and senior lawyerSri Lanka

Asian Human Rights Commission19th Floor, Go-Up Commercial Building

998 Canton Road , Mongkok, KowloonHong Kong, China

Tel: +(852) 2698 6339 Fax: +(852) 2698 6367

E-mail: [email protected]: www.ahrchk.net

JananeethiTB Road, Thrissur680 001, KeralaIndiaTel: +(91) 487 242 7338/ 244 4473Fax: +(91) 487 244 4474E-mail: [email protected]: www.jananeethi.org

Mof

Documents

Transcript of Mof